NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Indictments found and returned in the Superior Court Department on May 12, 2006.

A pretrial motion to suppress evidence was heard by Richard F. Connon, J.

An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

James Silver for the defendant.

IRELAND, C.J. On January 20, 2006, the defendant, Kristian A. Chown, was stopped for speeding and then arrested for operating a motor vehicle without a license in violation of G. L. c. 90, § 10. During the subsequent inventory search of his motor vehicle, police recovered drugs, cash, and other items. As a result, the defendant was indicted for trafficking in cocaine, in violation of G. L. c. 94C, § 32E (b) (2), and possession of marijuana with intent to distribute, in violation of G. L. c. 94C, § 32C (a). The defendant moved to suppress the evidence recovered from the inventory search, contending that under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights2 the evidence was the fruit of an unlawful arrest, the arrest being unlawful because the defendant did not need a Massachusetts driver’s license and possessed a valid Canadian driver’s license at the time of the stop. After an evidentiary hearing, a Superior Court judge agreed and allowed the motion. A single justice of this court granted the Commonwealth leave to pursue in the Appeals Court an interlocutory appeal from the judge’s order, see Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).3 A divided panel of the Appeals Court reversed the order of suppression. Commonwealth v. Chown, 76 Mass. App. Ct. 684, 690 (2010). We granted the defendant’s application for further appellate review. Because the arresting officer did not, in connection with the defendant’s arrest, take into account the statutory factors enumerated in G. L. c. 90, § 3 ½, for determining Massachusetts residency, and thus lacked probable cause to arrest the defendant for operating without a Massachusetts driver’s license, we affirm the order allowing the defendant’s motion to suppress.

The defendant worked part time in Hyannis as a bartender at a restaurant that was owned by his stepfather.4 During the late evening on January 20, 2006, the defendant left the restaurant parking lot in his extended cab pickup truck and was observed exceeding the posted speed limit by Sergeant Kevin J. Tynan of the Barnstable police department. Sergeant Tynan activated his overhead lights on his marked cruiser and the defendant pulled his truck into a commercial parking lot.

As Sergeant Tynan approached the truck he noticed that it had a registration plate from New Brunswick, Canada. He also observed that the rear window of the truck had been smashed, with weather stripping hanging out. As he approached the driver’s side of the truck, he recognized the driver. Sergeant Tynan had been a patron at the restaurant a few times. The defendant also was familiar to Sergeant Tynan because Sergeant Tynan had interacted with him previously, including in 2005, in response to a call made by the defendant and his then girl friend from a house owned by the defendant at 585 Old Falmouth Road in Marstons Mills.5

The defendant presented Sergeant Tynan with a New Brunswick license, listing a New Brunswick address and containing an expiration date of July 8, 2007, but could not locate and produce the truck’s registration.6 Sergeant Tynan informed the defendant that he had been stopped for speeding. Sergeant Tynan had personal prior knowledge that the defendant previously had possessed a Massachusetts driver’s license (that had expired). Sergeant Tynan inquired why the defendant did not have a Massachusetts driver’s license. The defendant replied that he planned on going to the registry of motor vehicles (registry) the next morning to obtain one.

Sergeant Tynan returned to his cruiser to run a record check with the registry, which confirmed that the defendant’s Massachusetts driver’s license had expired and revealed a lengthy history of in-State motor vehicle violations committed by the defendant, dating back to 1989, with various license suspensions and reinstatements.7 At the time of the stop, however, there were no current suspensions or revocations. Because Sergeant Tynan did not have access to Canadian registry records, he was not then able to verify the validity of the defendant’s Canadian driver’s license; the Commonwealth does not dispute that the license was valid.

Sergeant Tynan informed the defendant that he was under arrest for operating a motor vehicle without a Massachusetts license. The defendant also was charged with failing to have his registration in possession and speeding.8 Sergeant Tynan testified at the evidentiary hearing that he made the arrest because he had learned at the police academy that, “if you’re gainfully employed in the Commonwealth, residing there, have a place of address, [then] you have to get a Massachusetts driver’s license.”

Sergeant Tynan requested the assistance of another officer who, on his arrival, transported the defendant to the police station. Pursuant to the department’s written inventory policy, because of the damage to the truck’s rear window, Sergeant Tynan needed to secure the vehicle and conduct an inventory. While conducting the inventory search, he smelled a strong odor of marijuana emanating from the back seat. There, under the rear seat, he recovered a backpack that contained drugs and two scales. He also found credit cards, a check from an account in the defendant’s name with the Old Falmouth Road address, a piece of mail addressed to the defendant at the Old Falmouth Road address, and cash in the amount of $6,355. Affixed to the window of the truck, Sergeant Tynan noticed a 2002 local “dump sticker.”

In allowing the defendant’s motion to suppress, the judge noted that the defendant had produced a valid Canadian license and that, under G. L. c. 90, § 10, a nonresident may operate a motor vehicle in Massachusetts “in accordance with section three [of G. L. c. 90]” and if “duly licensed under the laws of the state or country where such vehicle is registered and has such license on his person or in the vehicle in some easily accessible place.” While § 3 of G. L. c. 90 limits the operation of a motor vehicle owned by a nonresident and registered in a different country to no “more than thirty days in the aggregate in any one year or, in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth, beyond a period of thirty days after the acquisition thereof, except during such time as the owner thereof maintains in full force a policy of liability insurance,” the judge noted that a violation of this section results in a fine and does not give a police officer authority to arrest. In addition, the judge concluded that the defendant could not have been in violation of § 3 because the period runs “in the aggregate within a calendar year” and the arrest was made fewer than thirty days into January, 2006. The judge rejected the Commonwealth’s evidence of the defendant’s ownership of property in Massachusetts as being relevant to the determination of probable cause at the time of the arrest. The judge concluded that Sergeant Tynan lacked probable cause to believe that the defendant was a resident of Massachusetts.

The Appeals Court, by a divided panel, reversed, concluding that Sergeant Tynan was warranted in believing the defendant was a Massachusetts resident and therefore was required to have a Massachusetts driver’s license. Commonwealth v. Chown, 76 Mass. App. Ct. 684, 690 (2010). The Appeals Court reasoned that “it appears almost inescapable that the defendant was a [Massachusetts] resident [because] [f]rom the perspective of Sergeant Tynan, the defendant had lived and worked for years in Massachusetts, possessed a local driving record dating back to 1989, had at one point a Massachusetts license, drove a truck with a sticker on it for the local dump, and said he was planning on going the following day to the [r]egistry to obtain a license.” Id. Because Sergeant Tynan had probable cause to arrest the defendant, the Appeals Court determined that the evidence seized thereafter was admissible. Id. As previously noted, we granted the defendant’s application for further appellate review.

2. Discussion. As an initial matter, there is no question that Sergeant Tynan had authority to stop the defendant for speeding. See Commonwealth v. Bacon, 381 Mass. 642, 644 (1980), and cases cited (“Where the police have observed a traffic violation, they are warranted in stopping a vehicle”). What we must decide is whether Sergeant Tynan thereafter had a lawful basis to arrest the defendant. An overview of the statutory scheme is in order.

a. Statutory scheme. As relevant here, under G. L. c. 90, § 10, a “person”9 who is sixteen years of age or older is prohibited from “operat[ing] a motor vehicle upon any way [in Massachusetts]” without first obtaining a Massachusetts driver’s license. Section 10 contains several exceptions to the Massachusetts driver’s license requirement. Operation of a motor vehicle in Massachusetts without a Massachusetts driver’s license, for example, is permitted “for persons licensed in another state or country” if the person “possesses a receipt issued under [G. L. c. 90, § 8].”10 G. L. c. 90, § 10, first par. It also is permitted with respect to a “nonresident”11 subject to certain limitations as follows:

“The motor vehicle of a nonresident may be operated on the ways of the commonwealth in accordance with [G. L. c. 90, § 3,] by its owner . . . without a license from the registrar [of motor vehicles] if the nonresident operator is duly licensed under the laws of the state or country where such vehicle is registered and has such license on his person or in the vehicle in some easily accessible place. Subject to the provisions of [§ 3], a nonresident who holds a license under the laws of the state or country in which he resides may operate any motor vehicle of a type which he is licensed to operate under said license, duly registered in this commonwealth or in any state or country; provided, that he has the license on his person or in the vehicle in some easily accessible place, and that, as finally determined by the registrar, his state or country grants substantially similar privileges to residents of this commonwealth and prescribes and enforces standards of fitness for operations of motor vehicles substantially as high as those prescribed and enforced by this commonwealth.”

G. L. c. 90, § 10, first par.

General Laws c. 90, § 3, first par., provides in pertinent part:

“Subject to the provisions of [G. L. c. 90, § 3A (pertaining to the appointment of registrar as attorney for purposes of service of process),] and except as otherwise provided in this section and in [§ 10], a motor vehicle . . . owned by a non-resident who has complied with the laws relative to motor vehicles . . . and the registration and operation thereof, of the state or country of registration, may be operated on the ways of this commonwealth without registration under this chapter, to the extent, as to length of time of operation and otherwise, that, as finally determined by the registrar, the state or country grants substantially similar privileges in the case of motor vehicles . . . duly registered under the laws and owned by residents of this commonwealth; provided, that no motor vehicle . . . shall be so operated on more than thirty days in the aggregate in any one year or, in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth, beyond a period of thirty days after the acquisition thereof, except during such time as the owner thereof maintains in full force a policy of liability insurance providing indemnity for or protection to him, and to any person responsible for the operation of such motor vehicle . . . with his express or implied consent, against loss by reason of the liability to pay damages to others for bodily injuries, including death at any time resulting therefrom, caused by such motor vehicle . . . , at least to the amount or limits required in a motor vehicle liability policy as defined in [G. L. c. 90, § 34A]” (emphasis added).

Operation of a motor vehicle in Massachusetts without a proper license is a violation of law and an arrestable offense. See G. L. c. 90, § 21, first par. (“Any officer . . . may arrest without a warrant . . . any person who, while operating a motor vehicle on any way . . . violates the provisions of the first paragraph of [G. L. c. 90, § 10]“). In addition, “[a]ny arrest made pursuant to [G. L. c. 90, § 21, first par.,] shall be deemed an arrest for the criminal offense or offenses involved and not for any civil motor vehicle infraction arising out of the same incident.” Id.

b. Basis for arrest. The Commonwealth argues that Sergeant Tynan properly arrested the defendant for driving without a Massachusetts license because, based on the facts then known to Sergeant Tynan, he had probable cause to believe that the defendant was a resident of Massachusetts and was driving without a valid Massachusetts driver’s license. “Where, as is the case here, an arrest and attendant search are made without a warrant, the Commonwealth bears the burden of establishing that the actions of the police met constitutional standards.” Commonwealth v. Santaliz, 413 Mass. 238, 240 (1992). “Both the Fourth Amendment . . . and art. 14 . . . require that an arrest upon which a search is undertaken be based on probable cause.” Id., and cases cited. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense” (emphasis added). Id. at 241, quoting Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). “The officers must have entertained rationally ‘more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt.” Commonwealth v. Santaliz, supra, quoting Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989). “[A]n objective test is used to determine whether probable cause exists.” Commonwealth v. Franco, 419 Mass. 635, 639 (1995). We conclude that the Commonwealth did not satisfy its burden in this case.

By producing a Canadian driver’s license to Sergeant Tynan, the defendant, essentially, was claiming to be a “nonresident” who, subject to the provisions of G. L. c. 90, §§ 3 and 10, may lawfully operate a motor vehicle in Massachusetts without a Massachusetts driver’s license. Under G. L. c. 90, § 3 ½, however, “[a]ny person claiming to be a nonresident for purposes of [G. L. c. 90, § 3], shall be deemed to be a resident of the commonwealth” in certain circumstances. G. L. c. 90, § 3 ½ (a) (1)-(13) (listing various factors for deeming Massachusetts residency, such as whether person is registered to vote in Massachusetts; has homeowner’s liability insurance coverage on property declared to be occupied as principal residence; receives public assistance for himself or dependent child; or obtains any benefit, exemption, deduction, or privilege by claiming principal residence in Commonwealth). One of the enumerated factors must be present for a person to be “deemed” a Massachusetts resident (for purposes of G. L. c. 90). This requirement no doubt exists because the determination of residency otherwise typically is “largely a question of fact,” Rummel v. Peters, 314 Mass. 504, 517 (1943), and the statute “contemplates that a [person] may be a nonresident although he has a regular place of abode or residence here.” Id. at 513. Thus, the factors in § 3 ½ (a) (1)-(13) somewhat simplify the issue by being the only ones that are determinative. In addition, the statute requires the custodian of the records that contain the information referred to in § 3 ½ (a) (1)-(13) to provide access to that information to “a local or state police officer” “for purposes of enforcing [G. L. c. 90].” G. L. c. 90, § 3 ½ (b). As such, a legal determination of residency (for purposes of G. L. c. 90) involves some investigation and as a practical matter is not one that can be made in the field based on suspicions that do not correspond to the various residency factors enumerated in § 3 ½ (a).

Here, when Sergeant Tynan arrested the defendant, although he suspected that the defendant was a resident of Massachusetts for various reasons, he had not conducted an investigation into the matter or obtained any of the relevant determinative information under and pursuant to § 3 ½.12 Consequently, Sergeant Tynan did not base his decision to arrest on information that was “definite and substantial,” Commonwealth v. Santaliz, supra, in the context of the confines of the statutory scheme, in particular, G. L. c. 90, § 3 ½, and thus, did not possess the requisite probable cause to arrest the defendant for operating without a Massachusetts driver’s license.

There is no doubt that the Legislature has limited the period of time that a nonresident (who possesses a license from another State or country) may operate a motor vehicle in Massachusetts without a Massachusetts driver’s license and without furnishing liability insurance. The requirements exist for the protection of the public.13Apger v. New York Cent. R.R., 310 Mass. 495, 497 (1941). Just as the Legislature has prohibited all resident operators of Massachusetts from operating a motor vehicle in Massachusetts without furnishing the insurance protection required under the compulsory motor vehicle insurance law, see VanDresser v. Firlings, 305 Mass. 51, 53 (1940), the Legislature has extended this public policy to require liability insurance as set forth in G. L. c. 90, § 3, of nonresidents operating in Massachusetts after a limited period of time. See Apger v. New York Cent. R.R., supra. Specifically, the Legislature has imposed two temporal limitations. First, in the absence of the requisite liability insurance, a nonresident may not operate a motor vehicle in Massachusetts for “more than thirty days in the aggregate in any one year.” G. L. c. 90, § 3, first par. Second, in the absence of the requisite liability insurance, a nonresident may not operate a motor vehicle in Massachusetts “beyond a period of thirty days after the acquisition [of]” “a regular place of abode or business or employment [in Massachusetts].” Id. See VanDresser v. Firlings, supra at 54 (phrase “period of thirty days” begins on fixed date and ends after expiration of thirty days from that date). These provisions serve to “eliminate the evil of uncompensated injuries caused to travellers by owners of automobiles who were unable to satisfy the claims of the victims of their negligence.” Apger v. New York Cent. R.R., supra at 498.

If a police officer has reason to believe that a nonresident driver is in violation of these temporal limitations, the officer may, in a routine traffic stop, request a copy of the operator’s liability policy or insurance certificate.14 An operator’s failure to produce evidence of insurance may result in the issuance of a citation or summons, but it is not an arrestable offense under G. L. c. 90, and does not provide a basis for establishing probable cause to arrest. Here, where there was not probable cause to believe that any of the factors in G. L. c. 90, § 3 ½, were present to show that the driver was a Massachusetts resident, there was no basis for his arrest under G. L. c. 90, § 21 (“officer . . . may arrest without a warrant . . . any person who, while operating a motor vehicle on any way . . . violates the provisions of the first paragraph of [G. L. c. 90, § 1015]“), once the operator produced what appeared to be a valid Canadian license.

We speak to one final matter. We agree with the motion judge and the dissenting opinion in Commonwealth v. Chown, 76 Mass. App. Ct. 684, 693-695 (2010) (Trainor, J., dissenting), that Commonwealth v. Caceres, 413 Mass. 749 (1992), is not instructive here. In that case, an inventory search of a vehicle was challenged by the defendant who had been the driver. Id. at 750. The defendant did not contest the lawfulness of the stop or of his arrest (he had given the State trooper who stopped him a false name in violation of G. L. c. 90, § 25). Id. We rejected the defendant’s claim that the circumstances did not justify seizing his vehicle and conducting an inventory search. Id. In so doing, we stated that “the evidence justified a reasonable conclusion that the passenger [who produced a driver's license from Puerto Rico] was not authorized to operate a motor vehicle in Massachusetts [and that] there was no alternative but to seize the vehicle and to conduct an inventory search.” Id. at 752. We explained that the passenger was not authorized to operate the vehicle because of “uncontroverted evidence” that warranted “an objectively reasonable belief that [the passenger] had been in the continental United States for three years and . . . did not . . . have a license to operate other than the Puerto Rico license.” Id. at 753. In this case, there was no such “uncontroverted evidence” that, at the time of his arrest in January, 2006, the defendant had been in Massachusetts for three years. Just prior to being arrested the defendant had produced what appeared to be a valid, and recently acquired, Canadian driver’s license showing a New Brunswick address, and at the evidentiary hearing on his motion to suppress the defendant maintained that, at the time of his arrest, he was a resident of New Brunswick, Canada.

3. Conclusion. The order allowing the defendant’s motion to suppress is affirmed.

So ordered.

1 Justice Cowin participated in the deliberation on this case prior to her retirement.

2 In his motion to suppress, the defendant did not argue that art. 14 of the Massachusetts Declaration of Rights affords him any greater protection than the Fourth Amendment to the United States Constitution.

3 The trial was stayed pending resolution of the interlocutory appeal.

5 The defendant did not dispute that he owns another home in Marstons Mills, would sometimes stay there as well as at his mother’s house in South Yarmouth, and used his mother’s address in connection with obtaining a Social Security card. At the evidentiary hearing on the motion, he testified that, at the time of the arrest in January, 2006, he legally resided in New Brunswick, Canada, and went back and forth from Canada to Massachusetts to help take care of his sick grandfather, and that when he was in Massachusetts, he slept at his mother’s house in South Yarmouth. He further testified that he rented his properties in Massachusetts.

6 In a brief filed after the evidentiary hearing on the motion to suppress, the defendant stated that it was “undisputed” that his truck was validly registered and insured in Canada. Although the Commonwealth did not contest these facts, there was no evidence of these facts submitted at the evidentiary hearing.

7 The judge indicated that he only would consider the defendant’s driving history in Massachusetts in the context of whether the defendant had been a resident of Massachusetts beyond thirty days.

8 There is no dispute that these two infractions do not amount to arrestable offenses.

9 The term “[p]ersons” means “wherever used in connection with the registration of a motor vehicle, all persons who own or control such vehicles as owners, or for the purpose of sale, or for renting, as agents, salesmen or otherwise.” G. L. c. 90, § 1.

11 The term “[n]on-resident” means “any person whose legal residence is not within the commonwealth.” G. L. c. 90, § 1. General Laws c. 90, § 3 ½, lists various factors that, if present, require a person to be “deemed” a resident of the Commonwealth for purposes of G. L. c. 90.

12 At the time of the defendant’s arrest Sergeant Tynan had knowledge that the defendant worked nearby. This factor alone is not one enumerated in G. L. c. 90, § 3 ½. In addition, while Sergeant Tynan had information that the defendant was living in Massachusetts, this factor also is not one enumerated in § 3 ½. Rather, § 3 ½ speaks of occupying real estate in Massachusetts “as a principal residence.” Last, although obtaining a “license . . . by claiming principal residence in the commonwealth” is a factor in determining residency, id., the defendant’s prior Massachusetts driver’s license had long expired at the time of the arrest and thus bore no relevance to his legal residency in January, 2006. The defendant’s statement to Sergeant Tynan of his intention to obtain a Massachusetts driver’s license likewise adds nothing of relevance and may have been made to appease the sergeant or to end the confrontation.

13 We note also that, for a nonresident lawfully to operate a motor vehicle in Massachusetts without a Massachusetts driver’s license, “his state or country [must] grant[] substantially similar privileges to residents of this commonwealth.” G. L. c. 90, § 10.

14 Sergeant Tynan considered the defendant to be a resident, not a nonresident, so production of these materials would not have made any difference to Sergeant Tynan. Because the Commonwealth does not contest the validity of the defendant’s registration and insurance, and the nature or extent of reciprocal privileges granted by New Brunswick, Canada, to motorists of Massachusetts, the defendant’s operation of his truck in Massachusetts beyond the temporal limits set forth in G. L. c. 90, § 3, was not shown to be unlawful.

15 General Laws c. 90, § 10, first par., provides that a “motor vehicle of a nonresident may be operated on the ways of the commonwealth . . . by its owner . . . if the nonresident operator is duly licensed under the laws of the state or country where such vehicle is registered and has such license on his person or in the vehicle in some easily accessible place.”

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Indictments found and returned in the Superior Court Department on June 6, 2007.

A pretrial motion to suppress evidence was heard by C. Brian McDonald, J.

An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals was reported by him to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Adriana Contartese for Gerald Eddington.

Thomas F. McGuire for Jessica Cappas.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

IRELAND, J. The defendants, Gerald Eddington and Jessica Cappas, were indicted on multiple firearm offenses,2 and Eddington also was indicted on a charge of operating a motor vehicle with a suspended license, in violation of G. L. c. 90, § 23. After an evidentiary hearing, a Superior Court judge allowed Eddington’s motion to suppress3 the firearm and ammunition recovered by police during an inventory search of an automobile driven by Eddington, in which Cappas was a passenger, on the ground that the firearm and ammunition were obtained as a result of an unlawful impoundment.4,5 A single justice of this court granted the Commonwealth leave to pursue interlocutory appeals from the judge’s orders, see note 5, supra, in the Appeals Court, see Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed the orders of suppression. Commonwealth v. Eddington, 76 Mass. App. Ct. 173, 179 (2010). We granted Eddington’s application for further appellate review. Because we conclude that the impoundment was justified in the circumstances of this case, we reverse the allowance of the motion to suppress the firearm and ammunition.

On April 29, 2007, at approximately 4:15 A.M., two officers of the Springfield police department, David Martin and Matthew Vickery, undertook surveillance (in a marked police cruiser) of an “after-hours” party at a residence on the corner of Colonial Avenue and Wilbraham Road. The officers were familiar with the residence because it was the scene of regular parties that frequently involved criminal activities that required their response, including fighting, shootings, two murders, public drinking outside the residence, and illegal parking.

Shortly after arriving at the residence, the officers saw the defendants leave the party carrying what appeared to be bottles of beer. The defendants walked across Wilbraham Road and over to a parking lot adjacent to a church. They got into an automobile, taking their bottles with them, and drove out of the parking lot. They turned left on Wilbraham Road, and then turned left on Suffolk Street. The officers followed and signaled for them to stop by using their blue lights and siren. The automobile pulled over promptly and stopped alongside a curb on the side of the street.7 This location was a short distance from the party the defendants had attended.

The officers approached the automobile to investigate the possibility of the presence of open containers of alcoholic beverages. Their suspicions were confirmed as soon as Officer Martin looked inside the automobile while asking Eddington, who was driving, for his license and registration. Two opened bottles of beer were in plain view inside the cup holders on the console between the front seats.

Eddington told the officers that he did not have a license, and he did not have the automobile’s registration. Officer Martin started preparing citations for the defendants for having open containers of beer in the automobile. He then obtained confirmation that Eddington’s license had been suspended. Eddington was removed from the automobile and placed under arrest for operating a motor vehicle with a suspended license. The officers determined that neither Eddington nor Cappas owned the automobile. Rather, from a check of the automobile’s registration plate number, the officers learned that the automobile was registered to a Jessica Rodriguez.

Because it was about 4:30 A.M., the officers decided not to contact Rodriguez to have her retrieve her automobile. The officers believed Suffolk Street (near Wilbraham Road) to be a “high crime” area, and were concerned that if left parked at the curb, the automobile would be vulnerable to theft or damage.8 Consequently, they decided to impound the automobile and arranged for it to be towed. Cappas was ordered out of the automobile. An inventory search was performed pursuant to the written policy of the department, and a loaded revolver was recovered under the front passenger seat.9 Cappas was arrested.

As relevant here, the judge suppressed the firearm and ammunition, concluding that the officers’ decision to impound the automobile was not justified. Because the automobile was lawfully parked, impoundment could only be justified if there was a risk of theft or threat of vandalism, which the judge determined that the Commonwealth did not show. Specifically, the judge explained that the officers’ testimony that the vicinity of the stop was a “high crime” area was insufficient to establish a likelihood of theft or vandalism because “[t]he nature of the crimes” that rendered the location of the stop a high crime area was not described.10

The Appeals Court reversed, concluding that the case falls under “the long-standing rule that impoundment of a car pulled over may be justified by specific evidence of a danger that the car left unattended might be vandalized or stolen when that danger is combined with a need to protect the police from false claims of loss.” Commonwealth v. Eddington, 76 Mass. App. Ct. 173, 177 (2010), citing Commonwealth v. Ellerbe, 430 Mass. 769, 775 (2000). The Appeals Court found the following factors determinative: the automobile was parked in a location dictated by the circumstances of the stop and not by the driver’s choice; the location of the stop was a “high crime” area; the defendants were not able to move the automobile; the owner was not present; it was impracticable, on account of the time at which the stop occurred, to contact the owner; and the police were not constitutionally obligated to contact the owner. Commonwealth v. Eddington, supra at 177-178. The Appeals Court explained that these factors demonstrated “a sufficient risk that the car might be vandalized or stolen so that, when combined with the risk of false claims for loss against the police, the impoundment of the car, pursuant to a constitutionally adequate police policy, was reasonable and thus permissible under the Fourth Amendment.” Id. at 178.

2. Further appellate review. In this case, Cappas’s appellate counsel, unlike Eddington’s appellate counsel, did not file an application for further appellate review. We have stated that, in civil cases involving multiple parties, “we will not consider the arguments of a wholly unsuccessful party who did not seek further appellate review.” Bradford v. Baystate Med. Ctr., 415 Mass. 202, 205 (1993). We noted that this principle “is consistent with our rule that one who does not appeal from a judgment is not entitled to more favorable treatment on appeal than that expressed in the judgment.” Id. at 205 n.4. In addition, the principle serves to provide fair notice to the Commonwealth of what issues and what defendants will be before us. It also enables the clerk of the Appeals Court to satisfy the prescribed duties concerning the issuance of rescripts of the Appeals Court. See Mass. R. A. P. 23, as appearing in 367 Mass. 921 (1975) (“The timely filing . . . of an application for further appellate review will stay the rescript until disposition of the . . . application . . . . If the [application] is denied, the rescript shall issue forthwith unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted the rescript of the Appeals Court shall not issue to the lower court”). We thus adopt, on and after the date of this opinion, the rule set forth in Bradford v. Baystate Med. Ctr., supra at 205, to criminal cases, requiring each defendant in a multiple defendant case (whether consolidated or not) who seeks further appellate review to file a timely application. In view of our decision in this case, and the procedural posture below (the trial court was notified that an application for further appellate review was filed in connection with the Appeals Court case and it appears that no further proceedings in the trial court were conducted), Cappas will not be subject to the new rule. Rather, our decision will apply to both Eddington’s and Cappas’s cases.

3. Propriety of the impoundment. On a motion to suppress evidence seized during a warrantless search, such as an inventory search as was done here, it is the Commonwealth’s burden to establish that the evidence was lawfully obtained. Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974). “Under both the Federal and Massachusetts Constitutions, analysis of the legitimacy of an inventory search of an impounded vehicle involves two related, but distinct, inquiries: (1) whether the impoundment of the vehicle leading to the search meets constitutional strictures, and (2) whether the conduct and scope of the search itself meets those strictures.”11Commonwealth v. Ellerbe, 430 Mass. 769, 772-773 (2000). The second aspect of the analysis is not at issue in this case; we focus on the propriety of the impoundment. See Commonwealth v. Garcia, 409 Mass. 675, 678 (1991) (concerning inventory search, “the propriety of the impoundment of the vehicle is a threshold issue in determining the lawfulness of the inventory search”).

“The impoundment of a vehicle for noninvestigatory reasons is generally justified if supported by public safety concerns or by the danger of theft or vandalism to a vehicle left unattended.” Commonwealth v. Brinson, 440 Mass. 609, 612 (2003), quoting Commonwealth v. Daley, 423 Mass. 747, 750 (1996). There have been other circumstances where impoundment has been justified, such as where a vehicle was stopped on private property and the only occupant of the vehicle was arrested, leaving it “driverless,” Commonwealth v. Dunn, 34 Mass. App. Ct. 702, 706 (1993); and where the vehicle stopped did not possess valid registration plates, Commonwealth v. Horton, 63 Mass. App. Ct. 571, 573, 577 (2005). The decisions demonstrate that our determinations are fact driven, with the overriding concern being the guiding touchstone of “[r]easonableness.” Commonwealth v. Ellerbe, supra at 776. It must also not be overlooked that there are three separate interests protected by permitting warrantless inventory searches: “the protection of the vehicle and its contents; the protection of the police and the tow company from false charges; and the protection of the public from the dangerous items which might be in the vehicle,” which includes the interior of a locked trunk that is “certainly not invulnerable to vandalism or theft.” Commonwealth v. Garcia, supra at 682.

In this case, the automobile was lawfully parked and did not pose a public safety risk. Relying on Commonwealth v. Brinson, supra, Eddington contends that, because the automobile was lawfully parked, the officers should have left it. We held that “the government may not impound and conduct an inventory search of a car based on the arrest of the owner, where the car was lawfully parked in a privately owned parking lot and there was no evidence that the car constituted a safety hazard or was at risk of theft or vandalism.” Id. at 610. In the Brinson case, however, the owner of the automobile inventoried was present at the stop and earlier had selected the parking lot location at which his automobile was parked. Id. at 610-611. Here, the action of police in signaling for the automobile to pull over dictated the location of the stop (along the curb of a public street) and the owner of the automobile, Rodriguez, was not present at the scene to express a preference on the vehicle’s disposition. In accordance with our past precedent, the police were not constitutionally obligated to contact her. See Commonwealth v. Caceres, 413 Mass. 749, 751-752 n.2 (1992) (we have said in dictum “if the owner of the vehicle is present and makes such a proposal [for an alternative disposition of the automobile], this principle [considering the alternate disposition] seems appropriate” [emphasis added]).12 See also Commonwealth v. Ellerbe, supra at 776 (“Reasonableness did not require police officers to guard the vehicle or to wait with the unlicensed passenger until a licensed driver could be produced to take control of it”); Commonwealth v. Henley, 63 Mass. App. Ct. 1, 6 (2005) (police had no constitutional obligation to contact, in early morning hour, owner of vehicle, which was rental company, or authorized driver under rental agreement who was not present at stop). Although we need not examine the reason of the police officers for not attempting to contact Rodriguez, the reason for not doing so — the early morning hour — provided a sound basis for their decision. We also find significant the facts that Eddington was unable to operate the automobile because he had been placed under arrest (for operating a motor vehicle with a suspended license) and Cappas had been drinking and was not known to be authorized to drive the automobile. See Coleman v. State, 668 P.2d 1126, 1130 (Okla. Crim. App. 1983), cert. denied, 464 U.S. 1073 (1984) (impoundment justified where driver placed in custody and passenger had been observed drinking beer). Cf. Commonwealth v. Ellerbe, supra at 775-776 (impoundment justified in part based on fact that driver was arrested and passenger had no license with her); Commonwealth v. Daley, supra at 750 n.4 (impoundment justified in part because vehicle could not be turned over to third person). Nor was the vehicle’s registration produced. See G. L. c. 90, § 11 (“Every person operating a motor vehicle shall have the certificate of registration for the vehicle . . . and his license to operate, upon his person or in the vehicle, in some easily accessible place . . .”). Cf. Commonwealth v. Daley, supra at 750 (impoundment justified in part because vehicle was unregistered, uninsured, and had attached plates belonging to another vehicle). All these reasons, together with the interests protected by conducting an inventory search13 as well as the “the proposition that an officer’s judgment in the matter is to be tested by what reasonably appeared to him at the time, rather than to us in long afterthought,” Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 415 (1996), support impoundment.14 We thus conclude that the police acted reasonably in deciding to impound the automobile in the circumstances.

4. Conclusion. The orders allowing the motion to suppress as to Eddington and Cappas are reversed, and orders denying the motion to suppress are to enter. The cases are remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

GANTS, J. (concurring). I agree with the court that, under our controlling case law, the impoundment of the vehicle in this case was reasonable because the owner was not a driver or passenger in the vehicle, the driver could not produce the vehicle’s registration, and it was not clear that the driver had the owner’s authorization. Therefore, even though public safety was not at risk by leaving the vehicle locked on the public street where it was lawfully parked at the time of the stop, and even though there was no reason to believe that the vehicle contained dangerous or expensive personal property, and even though the vehicle was not parked in a high crime area where there was an escalated risk of theft or vandalism, it was still reasonable to impound the vehicle because there was no one present at the scene who plainly had authority over the vehicle to propose to the police a reasonable alternative to impoundment. Because impoundment was reasonable, an inventory search conducted in accordance with written police procedures was permissible to protect the police and tow company from false claims of theft or property damage. I write separately for two reasons.

First, in Commonwealth v. Wilson, 389 Mass. 115, 117 (1983), we declared that inventory searches are reasonable “where they are conducted in accord with standard procedures and are not a pretext, because they protect the defendant’s property and ensure the police against later claims of theft or lost property.” With respect to motor vehicles, the standard written procedures we have required for inventory searches focus solely on the conduct of the search of the motor vehicle, not on whether the motor vehicle itself should be impounded and made the subject of an inventory search. See Commonwealth v. Daley, 423 Mass. 747, 749-751 (1996). If we wish effectively to prevent motor vehicle inventory searches that are purely pretext, that is, searches that are conducted not because the police wish to protect the defendant’s property but because the police wish, for investigative purposes, to search the motor vehicle and lack the probable cause needed lawfully to do so, it is necessary to require the police to comply with standard written procedures as to whether to conduct an inventory search, not merely as to how such an inventory search should be conducted.

The standard written procedures need not be complex or difficult. They need only, for instance, provide that where the police are considering impoundment of a motor vehicle whose driver is its owner or a person clearly authorized by the owner to drive the vehicle, the police must (1) inform the driver that the vehicle will be taken to a police facility or private storage facility for safekeeping unless the driver directs the officer to dispose of it in some lawful manner, and (2) comply with an alternative disposition if that alternative is reasonable. The written procedures need not address which alternative dispositions are reasonable in the various circumstances; that is best left to the governing case law.

This procedural standard is derived from, but narrower than, the standard for noninvestigatory vehicle impoundment proposed by perhaps the best known scholar regarding the law of search and seizure, Wayne R. LaFave, in his treatise on the Fourth Amendment to the United States Constitution. See 3 W.R. LaFave, Search and Seizure § 7.3(c), at 621 (4th ed. 2004).15 See also LaFave, Controlling Discretion by Administrative Regulations: The Use, Misuse, and Nonuse of Police Rules and Policies in Fourth Amendment Adjudication, 89 Mich. L. Rev. 442, 446 & n.31 (1990).

A similar standard is set forth in Rule 603 of the Model Rules for Law Enforcement, Searches, Seizures and Inventories of Motor Vehicles at 63 (1974) (Model Rules), prepared by the Project on Law Enforcement Policy and Rulemaking, which provides that “[w]hen a person is arrested in or around a vehicle which he owns or has been authorized to use, . . . [he] shall be advised that his vehicle will be taken to a police facility or private storage facility for safekeeping unless he directs the officer to dispose of it in some other lawful manner.”16 The Model Rules were approved by the project advisory board, which consisted of representatives from police departments in several large United States cities; Dade County, Florida; and the District of Columbia.

While “we have not addressed whether the State Constitution imposes an obligation on the police to consider practical alternatives to impoundment before an inventory search can be reasonable,” Commonwealth v. Daley, supra at 750, courts in other States consider whether a driver proposed a reasonable alternative disposition in determining the reasonableness of a vehicle impoundment. See, e.g., State v. Gauster, 752 N.W.2d 496, 508 (Minn. 2008) (police should permit driver to make reasonable alternative arrangements where he makes specific request to do so); State v. Lunsford, 655 S.W.2d 921, 924 (Tenn. 1983) (based on circumstances, police should permit driver’s reasonable alternative to impoundment); State v. Lizee, 173 Vt. 473, 475 (2001) (“In determining whether impoundment was necessary, courts have focused on whether reasonable alternatives were available, such as whether . . . the driver could make alternative arrangements . . .”); State v. Perry, 174 W. Va. 212, 217 (1984), and cases cited (“Courts have held that a driver must be given a reasonable opportunity to make some alternative disposition of the vehicle before the police may impound it for the sole purpose of protecting it and its contents from theft or damage”).

Second, I fear that the court’s opinion may be misunderstood to mean that impoundment of a vehicle is reasonable, regardless of the circumstances, if the owner of the vehicle is not present in the vehicle at the time of arrest. Under the facts of this case, based on the information known or easily ascertainable by the police at the time of impoundment, no one in the vehicle was the owner or clearly authorized by the owner to drive the vehicle. We have yet to hold that only the owner of the vehicle may propose an alternative disposition to impoundment, and I do not believe we do so here. In dictum in a footnote in Commonwealth v. Caceres, 413 Mass. 749 (1992), we said that LaFave’s suggestion that, “if the driver asks that his car be turned over to a passenger, this should be done if the passenger is not under arrest or otherwise incapacitated and displays a valid operator’s license,” “seems appropriate” if the owner of the vehicle is present. Id. at 751-752 n.2, quoting 3 W.R. LaFave, Search and Seizure § 7.3(c), at 92 (2d ed. 1987). We did not discuss there whether a driver who is clearly authorized by the owner to drive the vehicle (and park it) may propose a reasonable alternative disposition.

2 Gerald Eddington was indicted on one charge of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a), after having been convicted previously of one violent crime and two serious drug offenses, G. L. c. 269, § 10G (c); one charge of unlawful possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 (h), after having been convicted previously of one violent crime and two serious drug offenses, G. L. c. 269, § 10G (c); one charge of unlawful possession of a loaded firearm, in violation of G. L. c. 269, § 10 (n); and one charge of operating a motor vehicle after his license had been suspended, G. L. c. 90, § 23. Jessica Cappas was indicted on one charge of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a); one charge of unlawful possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 (h); and one charge of unlawful possession of a loaded firearm, in violation of G. L. c. 269, § 10 (n).

3 In his motion to suppress, Eddington claimed that his rights under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights were violated. He did not argue that art. 14 affords him any greater protection than the Fourth Amendment.

4 The judge denied Eddington’s motion to suppress insofar as it pertained to the suppression of open bottles of beer. We have not been asked to review the propriety of this action.

5 Cappas was permitted to join Eddington’s motion to suppress, and the judge entered an order as to her, allowing suppression of the firearm and ammunition and denying suppression of the open bottles of beer.

6 We “supplement a judge’s finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness’s testimony.” Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). Here, the defendants do not dispute the judge’s factual findings, and it is apparent from the record that the judge implicitly credited the testimony of Officers David Martin and Matthew Vickery, who provided the only testimony at the evidentiary hearing on the motion to suppress.

8 Officer Martin testified that they did not leave the automobile parked on the street because it was a “high-crime area and there [were] valuable items inside the motor vehicle.” However, the inventory took place after the decision to impound, and, when making the decision to impound, the officers were unaware of the contents of the automobile’s trunk. See note 9, infra. Officer Martin also explained that, “to protect the department, to protect the vehicle’s owner, we towed the motor vehicle so no harm would come to it, that it wouldn’t be subjected to being stolen or broken into and the items being stolen.” Officer Martin added that the police generally “don’t have the luxury of waiting around for a registered owner to come to the scene. It ties up an officer . . . .”

9 Various items of stereo equipment, including a “speaker box” and an “amp,” were found in the trunk of the automobile. There is no evidence that the existence of this equipment was visible or made known to the officers prior to their decision to impound the automobile.

10 In his decision, the judge, based on his “personal familiarity with the neighborhood” in which the stop occurred, took notice of certain facts not in the record concerning the nature of the neighborhood that undercut Officer Martin’s testimony that it was a “high crime” area. We need not address the Commonwealth’s argument that this action by the judge was improper because we do not, in this case, place any emphasis on the nature of the neighborhood where the stop occurred. There was an absence of specific facts explaining why this particular location where Rodriguez’s automobile came to a stop was considered to be in a “high crime” area. See Commonwealth v. Johnson, 454 Mass. 159, 163 (2009) (“The term ‘high crime area’ is itself a general and conclusory term that should not be used to justify a stop or a frisk, or both, without requiring the articulation of specific facts demonstrating the reasonableness of the intrusion”). We caution that, to justify a decision to

impound, the police need more than the circumstance of a vehicle being stopped, and its driver arrested, in a “high crime” area.

11 Under both the Federal and State Constitutions inventory searches must be done in accordance with standard police operating procedures, and under art. 14, those standard procedures must be in writing. Commonwealth v. Ellerbe, 430 Mass. 769, 773 n.8 (2000), and cases cited. These requirements are not at issue in this case.

12 In Commonwealth v. Caceres, 413 Mass. 749, 751 n.1 (1992), we stated that “[i]t would seem reasonably clear that the failure to give a person an opportunity to make reasonable alternative arrangements for the vehicle would not invalidate an inventory search under Fourth Amendment principles.” We noted that “some State courts have indicated that the police must respond to a reasonable request for an alternative disposition of the vehicle [and] [o]thers have placed the burden on the police to initiate consideration of obvious reasonable alternatives.” Id., citing 3 W.R. LaFave, Search and Seizure § 7.3(c) (2d ed.

1987). In our view, adopting any per se rule whether such a rule applies to an owner or a driver contravenes the proper constitutional analysis — the touchstone of reasonableness that itself necessitates a case-by-case analysis that takes into account the numerous and varied situations in which decisions to impound are made. See Coolidge v. New Hampshire, 403 U.S. 443, 509-510 (1971) (Black, J., concurring and dissenting) (“The relevant test [whether the Fourth Amendment has been violated] is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must decided on its own facts”). See also Landry v. Attorney Gen., 429 Mass. 336, 348 (1999), and cases cited (Fourth Amendment violations occur only if search or seizure is unreasonable).

13 Because Rodriguez was not present at the stop, the police were not made aware of the existence of any valuables in the various compartments of the automobile, such as the trunk, that might be at risk of theft and thereby warranted safeguarding. While the police could not justify the impoundment by the presence of valuable property that they did not discover until after the inventory search had been conducted, it was not unreasonable for the police to consider the possibility that there might be valuables present inside the vehicle as a relevant factor in deciding to impound.

14 We underscore, in response to the concern expressed in Justice Gants’s concurring opinion, that we do not base our conclusion solely on the fact that the owner of the vehicle was not present at the time of the stop.

15 Professor LaFave proposes that the “arrested operator” should be asked to propose an alternative disposition of the vehicle, whereas I propose that the arrested operator be asked only if he is the owner or clearly has the owner’s authorization. See 3 W.R. LaFave, Search and Seizure § 7.3(c), at 621 (4th ed. 2004). I do not suggest that we impose a duty on the police to investigate the question of authorization where this is unclear.

16 “In any case where [the arrestee] requests that his vehicle be lawfully parked on a public street, he shall be required to make his request in writing.” Rule 603(B) of the Model Rules for Law Enforcement, Searches, Seizures and Inventories of Motor Vehicles at 63 (1974), prepared by the Project on Law Enforcement Policy and Rulemaking.

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J., and the cases were tried before him.

Dale M. Merrill for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: McHugh, Mills, & Grainger, JJ.

GRAINGER, J.

The defendant, Knowell Greenwood, was indicted on five counts, among them kidnapping, G.L. c. 265, § 26, breaking and entering, G.L. c. 266, § 17, and armed robbery, G.L. c. 265, § 17, all as a habitual offender. [FN2] Prior to trial, he filed a motion to suppress a pretrial identification. He also filed a motion to suppress an in-court identification. The trial judge denied both motions, and the Commonwealth introduced the contested evidence at trial. A jury convicted the defendant of kidnapping, breaking and entering, and the lesser included offense of unarmed robbery. On appeal, the defendant raises numerous claims of error, including the denial of his pretrial motions to suppress. Because we conclude that the arresting officers’ initial search of the defendant’s possessions was not supported by probable cause, but that the admission of the resulting fruits at trial was harmless beyond a reasonable doubt, and we reject the defendant’s other claims of error, we affirm the judgments of conviction.

Background. We summarize the relevant facts from the motion judge’s findings, supplemented as necessary with uncontested facts from the motion hearings.

[FN3] See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) (Isaiah I. [No. 1] ), S.C. 450 Mass. 818 (2008) (Isaiah I. [No. 2] ). At approximately 11:30 A.M. on October 9, 2004, a dispatcher for the Boston police department received a call from a resident of 1396 Dorchester Avenue, who reported that two large black males were banging on doors in his building. Officers Charles Blicker and Patrick Murphy responded to the scene in an unmarked police cruiser, which they parked roughly fifty feet from the apartment building’s front entrance. Proceeding to the second floor to speak with the caller, the officers observed several objects–specifically, a black book bag and a paper bag containing a partially filled bottle of beer–in the

second floor hallway outside of the caller’s apartment. The officers spoke with the caller who reiterated his initial report to the officers, adding that one of the two individuals–neither of whom he recognized–had braided hair. He also disclaimed ownership of the items discovered in the hallway, indicating that they had appeared only recently.

Officers Blicker and Murphy canvassed the building’s four floors in search of any suspicious persons. Failing to observe any suspicious activity or individuals during the course of their search, the officers exited the building from the rear. En route to their cruiser via the side of the building, they observed several pieces of broken glass on the ground, which Officer Blicker determined to have originated from a shattered window on the building’s third floor. Discerning no need to investigate further, the officers continued towards their cruiser intending to survey the building’s front entrance for several minutes before clearing the call.

Moments before entering the cruiser, Officer Blicker spotted a black male with braids, subsequently identified as the defendant, exiting the building via the front entrance. The defendant was carrying the black book bag and beer bottle previously observed by the officers in the hallway. Also in his possession were a cooler bag and a woman’s beige purse. Walking into the middle of Dorchester Avenue, the defendant immediately waved down a Pontiac Grand Am. After engaging the driver in a brief conversation, the defendant entered the vehicle on the passenger side. Officers Blicker and Murphy immediately entered their cruiser, activated their lights, and pursued the vehicle, pulling it over within one hundred feet of the apartment building.

With Officer Murphy serving as backup, Officer Blicker approached the vehicle and questioned the driver, who maintained that he was not familiar with the defendant and was merely giving him a ride to a nearby location. Satisfied with the driver’s explanation, Officer Blicker turned his attention to the defendant, whom he immediately removed from the vehicle. He pat frisked the defendant and, once satisfied that the defendant was not armed, questioned him concerning his activities at 1396 Dorchester Avenue. Receiving an unintelligible answer from the defendant, who appeared slightly inebriated, the officers then sought to determine ownership of the purse in the defendant’s possession. The defendant asserted that the purse belonged to his grandmother, providing her name to the officers. Unconvinced by this explanation, Officer Blicker retrieved the purse and opened it to test the defendant’s explanation. Among the items discovered in the purse was a prescription pill bottle bearing the victim’s name and listing his address as 1396 Dorchester Avenue. Based on this discovery, Officer Blicker handcuffed the defendant pending further investigation.

At this point, Officer Antonio DiMaggio arrived on the scene. Conducting a cursory search of the black book bag, Officer DiMaggio found several additional prescription pill bottles bearing the victim’s name and the 1396 Dorchester Avenue address. Receiving no answers from the defendant regarding ownership of the bottles, Officer DiMaggio proceeded to the apartment in search of a potential victim. Upon arriving at the apartment and discovering the door ajar, Officer DiMaggio entered with his gun drawn to conduct a protective sweep. Once inside, he encountered the victim, who appeared disheveled and informed Officer DiMaggio that he had just been robbed, describing his assailant as a black male with “dread locks.” [FN4] He further stated that the robber had choked him and placed him in a closet during the course of the robbery, threatening to kill him if he emerged. He also stated that he had attempted to contact the police once the robber fled the scene, but found that his telephone wires had been ripped out of the wall.

After taking the victim’s statement, Officer DiMaggio informed him that the police had a suspect in custody at a nearby Store 24. Within approximately fifteen minutes of the defendant’s initial detainment, officers transported the victim to the Store 24 to conduct a showup identification. Observing the defendant as he exited one of several cruisers in the parking lot, the victim immediately recognized the defendant as the robber, providing a positive identification to the police. He also subsequently identified several items in the defendant’s possession, including house keys and prescription pill bottles, as his belongings.

Reasoning that the police “did not exceed the permissible scope of a threshold inquiry,” the motion judge found the search of the purse and the defendant’s subsequent detainment to be reasonable extensions of the initial stop. He further held that, in light of the alleged “violent home invasion” and “in the interest of public safety,” the showup identification was necessary, and that nothing in the facts “indicate[d] that the manner in which this particular showup was conducted was unnecessarily or impermissibly suggestive.” Accordingly, the judge denied the defendant’s motions to suppress and found the showup identification–and, by extension, any future in-court identification– to be admissible.

Discussion. 1. Claims based on pretrial motions to suppress. Both motions to suppress are directed to the initial detention of the defendant immediately after the robbery. The defendant contends that the police lacked reasonable suspicion for the initial stop and possessed no probable cause to search the purse, book bag, or cooler bag. Therefore, he asserts, all the evidence subsequently obtained, including the victim’s showup and in-court identifications of the defendant, and moreover the victim’s in-court testimony identifying the items stolen from him, [FN5] was the product of an unlawful search and seizure in violation of the Fourth Amendment to the United States Constitution (Fourth Amendment) and art. 14 of the Massachusetts Declaration of Rights (art. 14). When reviewing a motion to suppress, we accept the motion judge’s subsidiary findings of fact absent clear error. Isaiah I. (No. 2), 450 Mass. at 821. “Our review of the application of constitutional principles to those facts, however, is plenary.” Commonwealth v. Watts, 74 Mass.App.Ct. 514, 516-517 (2009), quoting from Commonwealth v. Kaupp, 453 Mass. 102, 105 (2009).

a. Initial stop and exit order. We agree that Officers Blicker and Murphy possessed a reasonable suspicion of criminal activity sufficient to justify their initial stop of the vehicle and exit order to its occupants. Where police officers have a reasonable, articulable suspicion that a person in a vehicle has committed, is committing, or is about to commit a crime, they may stop that vehicle, issue an exit order, and conduct a threshold inquiry. Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Though the officers were admittedly uncertain that a specific crime had occurred, their observations to that point were sufficient to raise a reasonable suspicion of criminal activity. It is well established that otherwise innocent conduct, when considered in the aggregate, can give rise to reasonable suspicion. Isaiah I. (No. 2), supra at 823; Commonwealth v. Pagan, 63 Mass.App.Ct. 780, 782-783 (2005). Here, the defendant matched the caller’s general description of the suspicious individual banging on doors. The responding officers first observed him in possession of the black book bag and paper bag seen minutes earlier in the hallway outside of the caller’s apartment, as well as what Officer Blicker described as a lady’s purse. Upon exiting the building, the defendant immediately proceeded to hail an oncoming vehicle, conduct consistent with an attempt to flee the scene. In light of these specific, articulable facts, the judge correctly ruled that the officer’s initial stop was justified.

b. Patfrisk and search. Less certain is the propriety of the officers’ subsequent patfrisk and search of the purse, book bag, and cooler bag. While we concur that the vehicle stop and exit order were justified by the officers’ reasonable suspicion of criminal activity, see Bostock, supra at 619-622 (vehicle stop and exit order may be based on reasonable belief of criminal activity), we are not persuaded that the patfrisk and search were permissible under the circumstances. A Terry-type patfrisk and search, see Terry, supra at 23-27, may be performed only where an officer reasonably believes that the defendant is armed and dangerous. See Commonwealth v. Gomes, 453 Mass. 506, 512 (2009). See also Commonwealth v. Pagan, 440 Mass. 62, 68-69 (2003). “While the officer need not be absolutely certain that the individual is armed, the basis for his acts must lie in a reasonable belief that his safety or that of others is at stake.” Gomes, supra, quoting from Commonwealth v. Silva, 366 Mass. 402, 406 (1974). “[A] search for evidence as opposed to weapons is not authorized by Terry principles.” Commonwealth v. Santos, 65 Mass.App.Ct. 122, 125 (2005), and cases cited. Officer Blicker’s hearing testimony established that, throughout the course of the investigative stop, the defendant acted in a cooperative manner. He made no furtive gestures, was not hostile towards the officers and did not attempt to flee. When coupled with the officers’ uncertainty regarding the precise nature of the criminal activity afoot, these facts do not give rise to an articulable risk to officer safety.

Officer Blicker admittedly opened the purse in the conscientious exercise of his duties to ascertain the veracity of the defendant’s responses to his questioning. At no point was it his intention to search the purse for weapons. Nor would such an intrusion have been justified in light of our conclusion that the officers lacked any reasonable belief that the defendant was armed and dangerous.

The searches are likewise not sustainable on the alternate ground that they were incident to a lawful arrest. The Fourth Amendment and art. 14 permit a search of a defendant’s person and the area within his immediate control when conducted contemporaneously and incident to a lawful arrest. Commonwealth v. Netto, 438 Mass. 686, 696 (2003), citing Commonwealth v. Madera, 402 Mass. 156, 160-161 (1988). The search may precede the formal arrest so long as probable cause to arrest exists independently of the results of the search, Commonwealth v. Washington, 449 Mass. 476, 481 (2007), and where there is also probable cause to believe that the object searched contains evidence of the crime for which the defendant is being arrested. Netto, supra. “[P]robable cause exists where … the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual … has committed or was committing an offense. Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting from Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). The investigating officer “must have entertained rationally ‘more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime….’ ” Santaliz, supra, quoting from Commonwealth v. Rivera, 27 Mass.App.Ct. 41, 45 (1989).
Although the question is a close one, we are constrained to conclude that the police lacked probable cause to arrest the defendant. The initial stop of the vehicle was based primarily on the officers’ belief that the defendant matched the vague description provided by the initial call, and his possession of a woman’s purse. The officers lacked any concrete knowledge that a crime had been committed. Their observations to that point justified nothing more than the initiation of a threshold inquiry. Compare Commonwealth v. Cheek, 413 Mass. 492, 496 (1992) (no reasonable suspicion where defendant matched description of “black male with a black 3/4 length goose [down jacket]” and was observed in close proximity to reported stabbing in high crime area) and Commonwealth v. Acevedo, 73 Mass.App.Ct. 453, 458 (2009) (reasonable suspicion where suspects observed in close proximity to scene of armed robbery within minutes of report, one suspect was wearing white sneakers matching description of perpetrators, and suspects were only persons who generally fit description of perpetrators), with Bostock, 450 Mass. at 624-625 (probable cause where defendant observed in vicinity of reported criminal activity within minutes of the crimes, matched descriptions provided by multiple witnesses, and provided implausible answers to police questioning). Although the defendant’s subsequent responses to Officer Blicker’s questions heightened the officer’s suspicion, they did not suffice to elevate that suspicion to probable cause. The defendant’s justification for his possession of the purse, while suspect, was not wholly implausible, particularly in light of the absence at that point in time of any report of theft at 1396 Dorchester Avenue. See Commonwealth v. Watson, 430 Mass. 725, 733-734 (2000), quoting from Commonwealth v. Riggins, 366 Mass. 81, 88 (1974) (“[i]mplausible answers to police questions will, with other facts, support a finding of probable cause to conduct a search …”). Though under the circumstances the police conduct was far from egregious, the fact remains that the officers harbored nothing more than a reasonable suspicion of criminal involvement, thus the decision to open the purse, the black book bag, and the cooler bag was improper under our cases. See Commonwealth v. Levy, 76 Mass.App.Ct. 617, 621 (2010). Accordingly, the contents of these bags must be suppressed.

c. Showup identification. It is uncontested that the police used information obtained from the search of the purse, book bag, and cooler to locate the victim and conduct a showup identification. As those searches were unlawful, the evidence flowing from the information obtained from them, including the contact with the victim and the subsequent showup identification, was the fruit of a poisonous tree and must also be suppressed. [FN6] See Wong Sun v. United States, 371 U.S. 471, 487-488 (1963).

d. In-court identification. The defendant challenges the victim’s in-court identification on two grounds. He contends (1) that the in-court identification was tainted by the prior showup identification, which he contends was unnecessarily suggestive, and (2) that, even if the victim identified him at trial based on an independent recollection of the robbery, the in-court identification must be suppressed as fruit of the poisonous tree. We consider each argument in turn.

(i) Taint. For the reasons elaborated below, we conclude from this record that the victim’s in-court identification of the defendant was grounded in an independent source, namely the victim’s close and sustained observation of the defendant during the course of the robbery–prior to any unlawful police conduct.

Where a prior identification is deemed unnecessarily suggestive, a subsequent identification is admissible at trial only where the Commonwealth can “establish[ ] by ‘clear and convincing evidence’ that the proffered identification has a source independent of the suggestive confrontation.” Commonwealth v. Botelho, 369 Mass. 860, 868 (1976), quoting from United States v. Wade, 388 U.S. 218, 240 (1967), and cases cited. In considering whether an independent source exists, a judge may consider several factors, including “[t]he extent of the witness’ opportunity to observe the defendant at the time of the crime … and [ ] the lapse of time between the crime and the identification.” Commonwealth v. Johnson, 420 Mass. 458, 464 (1995), quoting from Botelho, supra at 869. The analysis is contextual, however, and not every factor is entitled to equal weight. See Commonwealth v. Ross, 361 Mass. 665, 671 (1972). Moreover, “[i]f greater weight is given to any single factor, [t]he extent of the witness’ opportunity to observe the defendant at the time of the crime … seems the most important. Clearly the firmer the contemporaneous impression, the less is the witness subject to be influenced by subsequent events.” Id. at 671-672 (internal quotations and citation omitted).

Here, the victim had ample opportunity to form a contemporaneous image of his assailant. At trial, the victim testified to having a clear view of the assailant when he first entered the apartment. The assailant’s “face was right in [his] face” and the victim “was looking right at [the assailant]” as he pushed the victim down the hallway, approximately “fifteen [to] twenty feet.” The victim’s opportunity to observe the assailant continued uninterrupted for approximately ten minutes before he was imprisoned in the bedroom closet. Although lacking a robust amount of detail, the portrayal of his assailant as a “black male … about 5’9 or so [with] braids in his hair” accurately described the defendant. It follows that, based upon his observations at the time of the robbery, the victim formed a mental composite of his assailant and that he recalled this image at trial in order to identify the defendant. Thus, we conclude that the evidence clearly and convincingly establishes that the victims’s in-court identification had an origin independent of the showup identification.

(ii) Fruit of the poisonous tree. The defendant also contends that, even if the victim identified him at trial based on an independent recollection of the robbery, the in-court identification must be suppressed as the fruit of the poisonous tree. [FN7] Application of the exclusionary rule to an in-court identification is rare, in part because it requires a demonstration that “the challenged evidence is in some sense the product of illegal government activity.” Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 464 (1986), quoting from United States v. Crews, 445 U.S. 463, 471 (1980) (emphasis supplied).

[FN8] Nevertheless, in-court identifications will be suppressed where either the physical presence of the witness in court or the witness’s basis of knowledge for the identification were procured in violation of the defendant’s Fourth Amendment rights. See, e.g., Crowe, supra at 463-464. Here, though the victim’s initial attempt to contact the police was thwarted by the defendant’s severance of the victim’s telephone wires, the record clearly

reflects his intention to notify the authorities. Contrary to the defendant’s contention, the victim’s identity was not undiscoverable but for the unlawful search. Therefore, likewise, the victim’s recognition of his assailant in court was not an event which was made only possible by the unlawful search. See Crews, supra at 472-473. Although the presence at trial of the defendant himself, was a product of the unlawful seizure, the defendant “is not himself a suppressible ‘fruit,’ and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.” Id. at 474. See Commonwealth v. Jacobsen, 419 Mass. 269, 275 n. 6 (1995), quoting from Crews, supra at 474 n. 10 (“Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book”). Accordingly, “the toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at trial was not poisoned.” Crews, supra at 472.

e. Harmless error. Having concluded that numerous pieces of evidence were the fruit of an unlawful search and seizure and should therefore have been suppressed, we must now determine whether their erroneous admission was “harmless beyond a reasonable doubt.” Commonwealth v. Tyree, 455 Mass. 676, 700 (2010), quoting from Chapman v. California, 386 U.S. 18, 24 (1967), and cases cited. When undertaking this analysis the essential question is “whether the record establishes ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Commonwealth v. Peixoto, 430 Mass. 654, 660 (2000), quoting from Chapman, supra. “The inquiry cannot be merely whether there was enough [evidence] to support the result, apart from the phase affected by the error.” Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445-446 (1983), quoting from Kotteakos v. United States, 328 U.S. 750, 765 (1946). “[I]t is not enough for the Commonwealth to demonstrate that its other, properly admitted evidence was ‘sufficient’ to convict the defendant or that the inadmissible evidence was ‘consistent’ with the admissible evidence.” Tyree, supra at 701, quoting from Commonwealth v. Dagraca, 447 Mass. 546, 554-555 (2006). [FN9]

The crux of the defense was misidentification; the Commonwealth’s case can be characterized as very strong, tainted evidence notwithstanding. Officer Blicker testified to observing the defendant at the scene of the crime, in possession of a woman’s purse that the victim subsequently identified as belonging to his wife. The defendant appeared to be fleeing the scene, and he could not justify his presence at 1396 Dorchester Avenue when confronted by police. Most damning by far is the testimony of the victim, who recounted the robbery and attack in detail, and identified the defendant with certainty at trial as his assailant. Our task is to determine whether this evidence was sufficiently “powerful as to neutralize the erroneously admitted” evidence. Dagraca, supra at 555 (citations omitted).

We conclude that the victim’s detailed and unrefuted testimony, his identification of his attacker and of his wife’s purse, which was found in the defendant’s possession by the officers, renders the inadmissible evidence harmless beyond a reasonable doubt. Simply stated, the admissible evidence relating to identification, on which the defense was exclusively based, was overwhelming. It was so powerful that it neutralized the tainted evidence, which was no more than duplicative on this issue. Accordingly, the admission in evidence of the showup identification and other fruits was harmless beyond a reasonable doubt.

2. Additional claims. We note that the defendant’s assertion of duplicative convictions is baseless. Massachusetts recognizes an elements-based approach to the doctrine of merger, whereby “a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element the other does not.” Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). When applying this rule, the actual criminal acts charged are wholly irrelevant; rather, we consider the elements objectively, abstracted from the facts of the particular case before us. Commonwealth v. Jones, 441 Mass. 73, 76 (2004). Kidnapping requires the Commonwealth to prove that the defendant, without lawful authority, forcibly or secretly confined the victim within the Commonwealth against his will. See G.L. c. 265, § 26. Robbery requires the Commonwealth to prove that the defendant stole or took the personal property of another by force and violence, or by assault and putting in fear. See Commonwealth v. Christian, 430 Mass. 552, 556 (2000). See also G.L. c. 265, § 19. Each offense contains elements that the other does not, and neither crime is a lesser included offense of the other. We conclude that the defendant’s multiple convictions were not duplicative.

To the extent that we do not address the defendant’s other contentions, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). [FN10]

Judgments affirmed.

FN1. The indictments indicate that the defendant is also known as Robert Markes.

FN2. The Commonwealth also indicted the defendant on counts of assault and battery, G.L. c. 265, § 13A, and assault and battery with a dangerous weapon, G.L. c. 265, § 15A. However, at trial the Commonwealth filed motions to nolle prosequi these counts, as well as the habitual offender portions of the remaining counts.

FN3. The evidence at the first suppression hearing (January 10, 2006) consisted of the testimony of Officer Charles Blicker of the Boston police department and the 911 recording of the resident’s complaint on October 9, 2004. The evidence at the second suppression hearing (January 31, 2006) consisted of testimony from Officer Antonio DiMaggio, Officer Steven Charbonnier, and the victim, as well as transcripts of grand jury testimony.

FN4. The motion judge concluded that the victim’s uncertainty regarding whether the defendant had “curls,” “dread locks,” or “corn rows” was a product of his unfamiliarity with the terminology for current hair styles, not a reflection on his ability to observe the defendant’s features.

FN5. These were also introduced as trial exhibits.

FN6. Though the Commonwealth failed to raise the issue on appeal, we briefly consider the admissibility of the showup identification pursuant to the inevitable discovery exception to the exclusionary rule. For the principle of inevitable discovery to apply, the Commonwealth must prove “the facts bearing on inevitability by a preponderance of the evidence and, once the relevant facts have been proved, that discovery by lawful means was ‘certain as a practical matter.’ ” Commonwealth v. McAfee, 63 Mass.App.Ct. 467, 479 (2005), quoting from Commonwealth v. Perrot, 407 Mass. 539, 547 (1990). “The certainty of discovery must exist at the time of the unlawful seizure, not develop as a result of circumstances occurring thereafter.” Commonwealth v. Ilges, 64 Mass.App.Ct. 503, 514 (2005) (internal citation omitted). While it appears certain that the victim, who had already tried to contact the police to report the robbery, would have done so at some point after the robbery, it is less clear that, absent the illegal search, the defendant would still have been in police custody. Prior to the illegal searches, Officer Blicker lacked any justification to prolong his threshold inquiry and detention of the defendant. See Commonwealth v. Catanzaro, 441 Mass. 46, 71 (2004) (“When a detention follows from a threshold inquiry that does not reveal further suspicious

activity or circumstances, that detention will normally be invalid”), and cases cited. “It [is not] enough to say that the ‘inevitability’ of discovery is established by proof that, more probably than not, the evidence would ultimately have been found by lawful means.” Commonwealth v. Barros, 56 Mass.App.Ct. 675, 680 (2002), quoting from Commonwealth v. O’Connor, 406 Mass. 112, 117 (1989). The showup identification, which was able to be conducted immediately after the robbery only as a result of the unlawful searches, must therefore be suppressed.

FN7. “[T]he ‘independent source’ test of [Wade, 388 U.S. at 241], … although derived from an identical formulation in Wong Sun, see 388 U.S. at 241, seeks only to determine whether the in-court identification is sufficiently reliable to satisfy due process, and is thus inapplicable in the context of [a] Fourth Amendment violation.” United States v. Crews, 455 U.S. 463, 473 n. 19 (1980). Accordingly, “a satisfactory resolution of the reliability issue does not provide a complete answer to the considerations underlying Wong Sun ….” Ibid.

FN8. We emphasize that no evidentiary value may be assigned to the consistency of the in-court identification with the showup identification, as such an assignation “would undermine the exclusionary rule’s objectives in

denying the Government the benefit of any evidence wrongfully obtained.” Crews, supra at 473 n. 18.

FN9. Other factors considered include the importance of the evidence to the prosecution’s case, the relationship between the evidence and the premise of the defense, and the frequency of the reference. Dagraca, supra at 553. However, these factors, while useful, are not exclusive or exhaustive. See Commonwealth v. Mahdi, 388 Mass. 679, 697 (1983); Tyree, supra at 701.

FN10. The defendant’s additional claims include error in the prosecutor’s closing and the phrasing of the victim’s testimony. A careful review of the record reveals neither material error nor prejudice to the defendant. The defendant also addresses the loss of certain evidence (now suppressed in any event) by the Commonwealth.

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

A complaint issued in the Chelsea Division of the District Court Department charging the defendant, Jose M. Lopez, with carrying a firearm without a license, G.L. c. 269, § 10 (a ); possession of a firearm without an identification card, G.L. c. 269, § 10 (h ); receiving stolen property, G.L. c. 266, § 60; and possession of a class D substance, G.L. c. 94C, § 34. The defendant, as relevant here, moved to suppress evidence (a firearm and marijuana), [FN1] claiming that it was unlawfully obtained by police without a warrant and in the absence of valid consent to enter his residence in violation of both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. [FN2] After an evidentiary hearing, a District Court judge granted his motion and entered a memorandum of decision and order suppressing the firearm and marijuana. A single justice of this court granted the Commonwealth leave to pursue an interlocutory appeal from the judge’s order in the Appeals Court, see Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). By a divided panel, the Appeals Court reversed the allowance of the defendant’s motion to suppress. Commonwealth v. Lopez, 74 Mass.App.Ct. 815, 826 (2009). We granted his application for further appellate review. Because, in the circumstances, it was not objectively reasonable for a police officer to believe that the woman who permitted him to enter the defendant’s residence was authorized to consent to the warrantless entry, we conclude that the entry into his residence and subsequent seizure of evidence therein was unlawful under art. 14. We therefore affirm the order allowing the defendant’s motion to suppress.

On the evening of August 30, 2005, Revere police Officer Mark Desimone and his partner were assisting another officer on a matter unrelated to this case at the Ocean Lodge, a two-story, forty-room motel on Revere Beach Boulevard in Revere. [FN4] The motel was notorious for excessive drug dealing, drug use, assaults, and robberies that occurred on the premises. About three months prior, Desimone regularly had visited the motel while on patrol, stopping in almost every night to run warrant checks against the names appearing on the motel’s guest log and on identification cards held by the management. The manager of the motel was known to police as “Victor.” Desimone had been acquainted with Victor for about seven months, and always found him “extremely cooperative.” On occasions where Desimone would review the guest log with Victor, Victor told Desimone that he resided in room 138, which was a detached building about the size of a “shed” located behind a restaurant at the front right of the motel. Room 138 contained two bedrooms and a bathroom, and usually was rented to or occupied by the motel manager.

As Desimone and his partner were leaving the Ocean Lodge that evening at about 9 P.M., they encountered Victor, who asked them to retrieve a needle that had been discarded on the premises of the motel. This service was one that the police regularly provided. Desimone explained to Victor that they had another matter to which they had to respond, but would come back when finished.

At approximately 10 P.M., Desimone and his partner returned to the motel. They were dressed in uniform, and drove an unmarked police vehicle. Desimone went to the motel’s office, asked for Victor, and was told that Victor “was in his room.” Believing (based on past information provided by Victor while previously reviewing the motel’s guest log) Victor’s room to be room 138, Desimone went over to that room while his partner remained in the unmarked vehicle.

Desimone knocked on the door to room 138 and said, “Hello, Victor.” A woman, who was unknown to Desimone, opened the door “all the way.” Desimone stated, “Hello, is Victor here?” The woman looked at him “funny–like a deer in the headlights type of look” and replied, “I don’t know.” Desimone showed the woman the needle disposal canister that he held in his hand and told her that Victor had asked him to pick up a needle. The woman said, “Oh, okay.” Desimone asked, “Can I come in?,” to which the woman said, “Yeah, sure.” During this exchange, Desimone observed that the woman “appeared to be nervous.” He testified: “She looked kind of stunned, and I wasn’t sure if maybe she was maybe under the influence of drugs or what it was, but she looked a little … staring and just kind of shocked look.” [FN5]

Desimone entered the residence and the woman closed the door behind him. In the bedroom to Desimone’s right, the door to which was open, he observed three men sitting on a bed together with a pile of a green leafy substance, which he believed from his training to be marijuana. Desimone did not recognize any of the men. The men appeared to be nervous and started to move their hands. Desimone knew of an ongoing “drug sting” taking place in the motel that night involving both the Revere and State police and he did not want to “make any arrests or bring any type of attention” to the motel. Consequently, he told the men to “relax” and that he was “not [there] to arrest anyone for marijuana,” but rather had come inside to “pick up a needle.” He asked them to put up their hands. The men looked away from Desimone to their right toward the other end of the room that was not visible to Desimone. Desimone heard some noise coming from that direction. He moved to look through the doorway and observed a fourth man, the defendant, in the far corner of the room. As Desimone was moving to look inside the room, he heard “a thump” that came from the small, metal trash barrel in the room, which was about six inches from the defendant. Desimone asked the defendant to go over with the other men.

Desimone called for his partner who, together with another officer, promptly entered. The officers moved the men, including the defendant, into the other room where the woman was. Desimone recovered a loaded .38 revolver from the trash barrel. He asked the defendant to show him his license to carry a firearm; the defendant responded that he did not have a license. The men, including the defendant, were placed under arrest. [FN6]

Later that evening, Desimone spoke with Victor. Victor explained that he had rented room 138 to four men, one of whom was the defendant. [FN7] Victor had seen the firearm the previous day and wanted to tell Desimone about it. Because he thought he may be overheard, Victor told Desimone that he had a needle instead of informing him about the gun.

In her findings and decision, the judge determined that the woman who had allowed Desimone to enter room 138, had given consent to enter that was “clear, unambiguous and voluntary.” The judge, however, concluded that the Commonwealth did not establish that the woman possessed the actual or apparent authority to consent to the entry because the only thing that the police knew about her was that she was the person who had opened the door. For this same reason, the judge stated that there was nothing in the facts to suggest a reasonable (but mistaken) belief that the woman possessed the actual or apparent authority to consent to the entry. Because the woman had no authority to give consent and the police had entered without a warrant, the judge allowed the defendant’s motion to suppress.

By a divided panel, the Appeals Court reversed. Commonwealth v. Lopez, 74 Mass.App.Ct. 815, 826 (2009). The Appeals Court determined that officer Desimone did not need to “second-guess the woman’s consent to enter” room 138 because his “purpose in entering … was neither to search nor arrest, but merely to retrieve the needle that Victor has asked him to pick up.” Id. at 821, 822. Thus, the Appeals Court concluded that Desimone’s entry into room 138 “was not a search in the constitutional sense.” Id. at 821. The Appeals Court went on to state that it was reasonable for Desimone “to assume that the woman had authority to allow him to enter” room 138 because he had no intention of conducting a search and there was nothing to put him on notice that she lacked authority to consent to the entry. Id. at 824. The Appeals Court explained that there were no circumstances warranting further inquiry from Desimone concerning the woman’s authority to consent because the woman never acted as though she could not permit him to enter; the woman was an adult; the woman did not hesitate in opening the door; the woman did not seek permission or guidance from anyone inside before allowing him to enter; the entry occurred at about 10 P.M.; and neither the defendant nor any of the other occupants inside protested or objected to the woman’s consent to his entry. Id. at 823-824. Once lawfully inside, the Appeals Court concluded that Desimone could lawfully seize the marijuana that was in plain view and the firearm that was recovered in a permissible limited protective search of the residence. Id. at 825. Last, the Appeals Court rejected the defendant’s contention that the woman’s consent to enter was involuntary, concluding that Desimone’s actions “were anything but coercive.” Id. at 822-823 n. 9.

2. Discussion. a. Significance of the entry. As an initial matter, we disagree with the Appeals Court’s conclusion that Desimone’s entry into room 138 was not a “search” in the constitutional sense because Desimone did not enter with the purpose of conducting a search. [FN8] See Commonwealth v. Lopez, supra at 821. To be sure, the Fourth Amendment and art. 14 expressly proscribe unreasonable “searches and seizures” and do not specifically speak to “entries.” See Fourth Amendment (“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated …” [emphasis added] ); art. 14 (“Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions” [emphasis added] ).

It has been settled law, however, that whether a “search” in the constitutional sense occurs, depends on whether the police conduct has intruded on a constitutionally protected reasonable expectation of privacy. See Kyllo v. United States, 533 U.S. 27, 33 (2001); Commonwealth v. Porter P., 456 Mass. 254, 259 (2010), and cases cited. Here, the Commonwealth does not dispute, as it cannot, that the defendant possessed a constitutionally protected reasonable expectation of privacy in room 138, the motel room (which contained two bedrooms) that he rented from Victor and that served as his home. The full protection of the Fourth Amendment and art. 14 expressly extends to “houses,” see Fourth Amendment (“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated …” [emphasis added] ); art. 14 (“Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions” [emphasis added] ); Payton v. New York, 445 U.S. 573, 585 (1980) (Fourth Amendment applies to all invasions by government “of the sanctity of a man’s home”), and has been construed to extend also to the legitimate privacy expectations of a motel occupant. See Stoner v. California, 376 U.S. 483, 489-490 (1964) (guest in hotel room enjoys protections against unreasonable searches and seizures under Fourth Amendment “[n]o less than a tenant of a house, or the occupant of a room in a boarding house”); Commonwealth v. Paszko, 391 Mass. 164, 184-185 (1984) (defendant may have reasonable expectation of privacy in motel room during rental period and prior to abandonment of room). Lest there be any doubt concerning the application of the Fourth Amendment and art. 14 to entries into homes, the United States Supreme Court expressly has stated that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (emphasis added), United States v. United States Dist. Court for the E. Dist. of Mich., 407 U.S. 297, 313 (1972). See Kyllo v. United States, supra at 37 (“In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes” [emphasis in original] ); Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (“Fourth Amendment generally prohibits the warrantless entry of a person’s home” [emphasis added] ). We also have specified that “[w]arrantless entries into the home are prohibited by the Fourth Amendment … and art. 14 … absent either probable cause and exigent circumstances, or consent” (emphasis added). Commonwealth v. Rogers, 444 Mass. 234, 236 (2005).

While the inquiry into an officer’s intent in entering a person’s home without a warrant may bear on whether some type of exigency justified the warrantless entry, it is not a factor in determining whether a search in the constitutional sense took place. See 3 W.R. LaFave, Search and Seizure § 6.6, at 451 (4th ed.2004) (police may enter premises without a warrant “for a variety of … purposes,” including to apprehend persons committing serious criminal offenses, to aid those who are in danger of physical harm, to assist those who cannot care for themselves, and to provide other services on emergency basis). Simply put, the purpose of the entry does not serve to vitiate the intrusion. Commonwealth v. Forde, 367 Mass. 798, 805 (1975) (“The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one’s privacy” [emphasis added] ). See Commonwealth v. Cruz, 442 Mass. 299, 307 (2004) (entry into defendant’s home without arrest or search warrant and in absence of exigent circumstances violated Fourth Amendment and art. 14). The point was underscored in Payton v. New York, supra at 589-590:

“[T]he critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home. The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home–a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their … houses … shall not be violated.’ That language unequivocally establishes the proposition that ‘[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ Silverman v. United States, 365 U.S. 505, 511 [ (1961) ]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”

See Kyllo v. United States, supra at 40 (concluding that government’s use of thermal-imaging device aimed at private home from street to detect relative amounts of heat from within home constitutes “search” within meaning of Fourth Amendment and is presumptively unreasonable without warrant).

Thus, where the Commonwealth is not arguing that exigent circumstances justified Desimone’s entry into room 138, we do not consider his intent in entering in determining whether the entry constituted a search in the constitutional sense. Because Desimone’s entry into room 138 was an intrusion to the defendant’s home, a place where he is to enjoy a constitutionally protected reasonable expectation of privacy and is to be shielded from unwarranted intrusions on that privacy, we conclude that Desimone’s entry into room 138 was an intrusion that constituted a “search” in the constitutional sense.

b. Consent exception. In addition to situations establishing probable cause or exigent circumstances, warrantless entries into a home have been found to be permissible under the Fourth Amendment and art. 14 where they are undertaken with consent. Commonwealth v. Rogers, supra (warrantless entries into a home “are prohibited by the Fourth Amendment … and art. 14 … absent either probable cause and exigent circumstances, or consent”). The Commonwealth bears the burden “to establish its theory of entry and prove lawful entry based on that theory.” Id. at 245. See Illinois v. Rodriguez, supra. Because the defendant had a reasonable expectation of privacy in his home and because Desimone entered his home without a search warrant and without any claim of exigency, the Commonwealth must prove that the police entry was reasonable because it was based on consent.

“When the police rely on consent to justify a warrantless entry, under both the Fourth Amendment and art. 14, the prosecution ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ ” Commonwealth v. Rogers, supra at 237, quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968). In addition, the person giving the consent must have the authority to do so. Illinois v. Rodriguez, supra at 181-182. It is this latter requirement that is at issue in this case.

A person has the actual authority to give consent in a variety of situations. It may be given “from the individual whose property is searched.” Illinois v. Rodriguez, supra at 181. Consent may also be provided from a third party possessing “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). See Commonwealth v. Porter P., 456 Mass. 254, 262 (2010), and cases cited. Common authority is “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, supra at 171 n. 7. [FN9]

Another type of authority to give consent is apparent authority. The seminal case concerning this type of authority and involving the Fourth Amendment is Illinois v. Rodriguez, supra at 185-186, in which the United States Supreme Court held that the Fourth Amendment’s proscription of “unreasonable searches and seizures” is not violated when a warrantless entry into a home is based on the consent of a third party who the police, at the time of entry, reasonably, but mistakenly, believed had common authority over the premises. The Court noted that the touchstone of reasonableness does not always require that the government will be factually correct in its assessments. [FN10] Id. at 184, 185-186. The Court also explained:

“[W]hat we hold today does not suggest that law enforcement officers may always accept a person’s invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. As with other factual determinations bearing upon search and seizure, determination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment … “warrant a man of reasonable caution in the belief” ‘ that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22 (1968). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.” [FN11]

Illinois v. Rodriguez, supra at 188-189. The critical inquiry, as can be seen, is the relationship between the third party and the premises. Id. See United States v. McAlpine, 919 F.2d 1461, 1464 (10th Cir.1990).

We recently adopted the doctrine of apparent authority, under art. 14, in Commonwealth v. Porter P., supra at 269. We did so, however, in the context of a search of, and not an entry into, a home. Id. at 271 & n. 16. We expressly reserved decision in the context of entry, noting that we had granted further appellate review in Commonwealth v. Lopez, 74 Mass.App.Ct. 815 (2009). Commonwealth v. Porter P., supra at 271 n. 16. Because, as we earlier stated, a warrantless entry into a home constitutes a search in the constitutional sense, there is no reason in this case to draw a distinction between searches and entries of homes, and we conclude that what we said in the Porter P. case applies here as well.

In Commonwealth v. Porter P., supra at 271, relying on Illinois v. Rodriguez, supra, we stated that “we do not believe that art. 14 is violated if a warrantless search of a home occurs after a police officer obtains the voluntary consent of a person he reasonably believes, after diligent inquiry, has common authority over the home, but it turns out that the person lacked common authority.” We went on to specify the “two basic steps” required to conduct a diligent inquiry:

“First, the police officer must base his conclusion of actual authority on facts, not assumptions or impressions. He must continue his inquiry until he has reliable information on which to base a finding of actual authority to consent…. Second, even when the consenting individual explicitly asserts that he lives there, if ‘the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth,’ the police officer must make further inquiry to resolve the ambiguity. [Illinois v.] Rodriguez, supra at 188. The police officer owes a duty to explore, rather than ignore, contrary facts tending to suggest that the person consenting to the search lacks actual authority. Police must not only thoroughly question the individual consenting to the search with respect to his or her actual authority, but also pay close attention to whether the surrounding circumstances indicate that the consenting individual is truthful and accurate in asserting common authority over the premises.”

Commonwealth v. Porter P., supra at 271-272.

In this case, the Commonwealth concedes that the woman who answered the door to the defendant’s home did not have the actual authority to let Desimone inside. The issue, therefore, is whether she had apparent authority to permit his entry. We analyze the issue under art. 14, referencing some Fourth Amendment jurisprudence where instructive and not inconsistent with art. 14. See Commonwealth v. Porter P., supra at 265 n. 9.

We conclude that, on the facts of this case, it was not objectively reasonable for Desimone to have thought that the woman who came to the door had the authority to permit him to enter. Consequently, there was no valid consent to justify the warrantless entry into the defendant’s home, and the entry violated art. 14.

Before knocking, Desimone believed that Victor lived in room 138 (and had no information that Victor lived with anyone or was involved with a woman). When the woman, who was not known to Desimone, opened the door, as opposed to Victor, a reasonable officer initially should have, at best, doubted the woman’s authority to consent to his entry of what he believed to be Victor’s residence. The circumstances created a “duty to explore, rather than ignore,” Commonwealth v. Porter P., supra at 272, the woman’s relationship to the premises to establish whether she possessed common authority, or even actual authority, over the premises. Instead, Desimone inquired of the woman whether Victor was present, to which he was given a “funny … type of look,” and the ambiguous response, “I don’t know.” In these circumstances, before and at the time of Desimone’s entry, whether the woman had any kind of authority to consent to Desimone’s entry was at best questionable, thereby prompting further exploration concerning her relationship to the premises. [FN12] See Commonwealth v. Porter P., supra at 272. See also 4 W.R. LaFave, Search and Seizure § 8.3(g), at 177 (4th ed.2004) (“under a sound application of the apparent authority rule the police must be required to make reasonable inquiries when they find themselves in ambiguous circumstances”).

The Commonwealth points to a number of factors to argue that it was reasonable for Desimone to believe that the woman had authority to allow him into the motel room. We do not find them instructive in view of the fact that the ambiguity that initially existed was never negated. For example, the Commonwealth’s assertion that Desimone had no reason to think that the woman did not have authority to permit him to enter room 138 is belied by the record, namely, he believed Victor resided in room 138, and had no information concerning anyone else living there also. Further, we agree with the well-written and reasoned dissent from the decision of the Appeals Court in this case, Commonwealth v. Lopez, supra at 834 (Lenk, J., dissenting), that “the Commonwealth needs to prove that there were facts affirmatively known to the officer that would permit him reasonably to believe that the person giving consent had authority over the premises [and][i]t is not enough to say that the officer was not aware of any facts showing she had no such authority.” The Commonwealth also suggests that officers are entitled to assume without inquiry that a person who answers a door in response to their knock has the authority to let them enter. While this assumption may be true in certain circumstances, it is not a universal rule, particularly where other facts suggest a conclusion to the contrary or call that assumption into doubt. [FN13] See United States v. Powell, 929 F.Supp. 231, 235 & n. 10 (S.D.W.Va.1996) (application of rule that police may assume person who answered door has authority to permit entry was “inappropriate” in view of other information provided at time). Indeed, the mere fact of access, without more, does not mean that the access was authorized. See United States v. Reid, 226 F.3d 1020, 1025 (9th Cir.2000). In addition, we conclude that Desimone’s intent in requesting entry (namely, not intending to conduct a search) into the premises was irrelevant to the issue whether consent was provided, because the pertinent inquiry is the nature of the consenter’s relationship to the premises.

[FN14] See Illinois v. Rodriguez, supra at 188-189 (critical inquiry is relationship between consenting party and premises); 3 W.R. LaFave, Search and Seizure § 6.6(c), at 478-479 (4th ed.2004) (even where police seek to enter premises for purposes of discussing official matter, they must rely on consent to gain admission and “the nature of the premises must be considered in deciding whether the officer [as any other caller] needs consent to enter”).

The fact that it was approximately 10 P. M., and that room 138 contained small rooms therein, does not compel a conclusion that Desimone “could reasonably think that the woman opened the door because she either was an occupant of the room or was opening the door at the occupant’s request.” See note 13, supra. There is no evidence in the record concerning Desimone’s knowledge of the room sizes before he was permitted entry into room 138. In addition, there is no evidence that Desimone had any knowledge (or even suspected) that there were any other occupants inside room 138 (apart possibly from Victor) when the unknown woman answered the door. Even if Desimone suspected that Victor was inside, Victor could have been sleeping or in the bathroom, thus the absence of anyone preventing the unknown woman from answering the door or from allowing Desimone inside has no bearing. The reasoning by the Commonwealth, as well as the dissent, is founded on speculation, not real facts. The fact that the woman was an adult as opposed to a child is not a circumstance that eviscerates the information then believed by Desimone, namely, that Victor lived in room 138, and the ambiguity that arose from the actions of the unknown woman opening the door and agreeing to allow Desimone inside. The same can be said of the remaining factors and factors previously mentioned–the woman did not seek permission or guidance from anyone inside room 138 before allowing Desimone to enter and no one inside room 138 objected to her consent to Desimone’s entry. In short, none of the factors negated the ambiguous situation faced by Desimone, which triggered a duty of diligent inquiry under art. 14. Because Desimone ignored facts calling into question the information he held (that Victor lived in room 138) and because Desimone did not conduct a diligent inquiry concerning the woman’s relationship to the premises (and thus, authority to give consent), we conclude that his warrantless entry into the defendant’s home was without valid consent, as it was not predicated on actual or apparent authority, and therefore violated art. 14. [FN15] [FN16]

3. Conclusion. Fully recognizing that these types of cases turn on their individual facts, we conclude that the Commonwealth did not satisfy its burden in this case of establishing that the woman who answered the door to the defendant’s home had authority to consent to Desimone’s entry therein. We therefore affirm the judge’s order allowing the defendant’s motion to suppress.

So ordered.

GANTS, J. (concurring).

I agree with the court that, because a warrantless entry into a home constitutes a search in the constitutional sense, “there is no reason in this case to draw a distinction between searches and entries of homes” (emphasis added). Ante at. I write separately to clarify that there is a distinction between a search of a home and entry into a home, which, although it does not affect the outcome of this case, may have bearing on the validity of consent in other search cases.

An entry into a home is more limited in scope than the search of a home. An entry is limited to the area of the home entered, which generally is an area to which all the inhabitants of the home have a shared right of access, such as a foyer, living room, or kitchen, and to objects that may be observed in plain view from the area entered. The scope of the entry does not generally include bedrooms or objects concealed from view. In contrast, a search of a home generally includes all areas of the home and all objects within the home, whether in plain view or concealed from view.

The cornerstone of the consent analysis is whether an individual has a shared right of access to the area being searched. See Commonwealth v. Porter P., 456 Mass. 254, 264-265 (2010). An individual lacking a shared right of access to an entire home may nonetheless have sufficient shared access to permit entry into a foyer, living room, or kitchen. See 4 W.R. LaFave, Search and Seizure § 8.5(e), at 235 & n. 117 (4th ed.2004), and cases cited (guest who is more than casual visitor and has “run of the house” may have limited authority to allow police to enter area where visitors are normally received). The Commonwealth’s claim of apparent authority fails here because the police officer did not know whether the unidentified woman who consented to his entry had a shared right of access to the room he entered. But that does not suggest that the diligent inquiry required for apparent authority is identical for consent to enter an area with a shared right of access as for consent to search an entire home.

COWIN, J. (dissenting, with whom Spina, J., joins).

In this case, the police officer believed that the person consenting to his warrantless entry had lawful authority to admit him to the premises. Because this belief was objectively reasonable, the entry did not violate the defendant’s rights under the Fourth Amendment to the United States Constitution. Because the analysis of consent for the purposes of art. 14 of the Massachusetts Declaration of Rights should be no different than what takes place under the Fourth Amendment, the entry did not violate art. 14. The court concludes otherwise. Accordingly, I respectfully dissent.

The only evidence at the motion hearing was the testimony of Revere police Officer Mark Desimone. The judge found the following facts. [FN1] While Officer Desimone and his partner were on routine patrol at a motel, “Victor,” the motel manager, asked Officer Desimone to pick up a syringe, “a service which the police routinely provide. “The officers had to respond to another call, but said they would return to the motel to pick up the syringe later that night. They returned at approximately 10 P.M. The night clerks in the hotel management office told Officer Desimone that Victor was in his room, which the officer understood (from past conversations with Victor) to be room 138. This room was separate from the rest of the motel and was not regularly rented. The officer went to room 138, knocked on the door, [FN2] and a woman whom he did not know opened the door.

When the officer inquired if Victor was there, she said, “I don’t know.” He explained that Victor had asked him to pick up a needle, and asked the woman if he could come in. She responded, “yeah, sure.” On entering room 138, he discovered that it consisted of two small, about “[e]ight by ten” bedrooms. The front door opened into one room, where the woman was standing; four other persons, including the defendant, were in the next room. Officer Desimone did not see the other persons until after he entered room 138. Officer Desimone and his partner “lacked any information regarding whether ‘Victor’ was married, dating or living with anyone.”

The Fourth Amendment permits an officer’s warrantless entry onto private premises when a party consents to the entry and where the consent comes about by reason of either actual or apparent authority. Persons who own or rent the property entered or searched, or third parties who have “common authority” based on joint access to and control of the premises, have actual authority to consent to any entry. [FN3] See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974). Apparent authority exists where the officer has a reasonable, but mistaken, belief that the consenting party has actual authority. Illinois v. Rodriguez, supra at 186. Whether the belief is reasonable without further inquiry is determined by evaluating objectively the context for that belief:

“[D]etermination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment … “warrant a man of reasonable caution in the belief” ‘ that the consenting party had authority over the premises? … If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.”

Id. at 188-189, quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Even an invitation to enter, accompanied by an explicit assertion of actual authority, is insufficient if “surrounding circumstances [are] such that a reasonable person would doubt [the assertion's] truth and not act upon it without further inquiry.” Illinois v. Rodriguez, supra at 188. The Fourth Amendment does not, however, require affirmative inquiry when the consenting party reasonably appears to have authority to consent. See Georgia v. Randolph, 547 U.S. 103, 122 (2006) (“[Illinois v.] Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent”).

Here, because the woman said Officer Desimone could come in to room 138, she consented to his entry. The officer’s prior experience indicated that room 138 was where Victor lived and was not being rented to others. Based on that understanding, the fact that the woman opened the door in response to “Hello, Victor,” and the lateness of the hour, the officer could reasonably believe that the woman either shared the room with Victor, or was otherwise authorized to be on the premises. If so, he could permissibly conclude that she had lawful authority to admit him to the unit. See United States v. Matlock, supra at 170.

The woman not only was inside the room and appeared to be a lawful occupant of the premises, but she also “acted at all times as though [s]he were the keeper of the door.” United States v. Rosario, 962 F.2d 733, 738 (7th Cir.1992). It can be inferred from the size of the small rooms that any other occupants would know that the woman answered the door, but there was no evidence that she sought guidance from anyone or behaved as though she needed approval. See id. at 737. Nor did any other occupants attempt to prevent her from either answering the door or admitting the person who sought entry. [FN4] See id. See also United States v. Kimoana, 383 F.3d 1215, 1225 n. 7 (10th Cir.2004). As a result, the officer had no reason to doubt the woman’s authority to admit him.

Considering all the information available to the officer at the time, he had an objectively reasonable belief, grounded in known facts, that the woman was an occupant with actual authority to consent. The officer was entitled to rely on that apparent authority, and his entry did not violate the defendant’s Fourth Amendment rights. For the same reasons, it did not violate the defendant’s analogous art. 14 protection.

The court disagrees. It concludes that Officer Desimone faced an “ambiguous situation,” ante at n. 12, based on two facts: a woman not known to the officers answered the door, and she gave an “ambiguous response” (“I don’t know”) to the officer’s inquiry about Victor’s whereabouts. Ante at n. 12. Absent other indications that the woman lacked authority, the woman’s presence at the door would not lead “a reasonable officer” to “doubt[ ] the woman’s authority to consent,” ante at. Because Officer Desimone knew nothing about Victor’s personal life or living arrangements, the woman’s presence neither reinforced nor undermined the officer’s belief. Similarly, the woman’s response to Officer Desimone’s question was insufficient to render the officer’s belief objectively unreasonable. The woman did not indicate that she did not know who Victor was, or that the room was not his; she only indicated that she did not know whether he was inside. See United States v. Jenkins, 92 F.3d 430, 436 (6th Cir.1996), cert. denied, 520 U.S. 1170 (1997) (“an officer does have discretion to interpret the factual implications of words in light of the context in which those words are spoken”). I do not agree that these two facts raised doubts sufficient to necessitate “further inquiry” pursuant to the Fourth Amendment standard articulated in Illinois v. Rodriguez, supra at 188-189, and I would not require any different analysis pursuant to art. 14.

The court applies to its art. 14 analysis the standard declared in Commonwealth v. Porter P., 456 Mass. 254, 271-273 (2010) (Porter P.), a decision from which I dissented. In Porter P., this court adopted, for the first time, the apparent authority doctrine with respect to cases arising under art. 14, but held that the doctrine applied “only if the reasonable mistake of fact occurs despite diligent inquiry by the police as to the consenting individual’s common authority over the home,” (emphasis supplied). Id. at 271. Porter P. further noted that a “diligent inquiry” requires two steps: the officer must “continue his inquiry until he has reliable information on which to base a finding of actual authority,” and if presented with “contrary facts” he must “not only thoroughly question the individual consenting” but also evaluate the individual’s credibility. Id. at 271-272.

Because the Fourth Amendment would not require a “further inquiry” in this case, I do not believe art. 14 requires a “diligent inquiry” either. By its plain language, however, Porter P. appears to presuppose that an “inquiry” is mandatory in every case. It suggests that, absent a colloquy with the consenting party, an officer cannot have an objectively reasonable belief that actual authority to consent is present. If Porter P. is understood to require such a colloquy, it imports into the Declaration of Rights a harmful and unnecessary restriction on proper police performance that is nowhere found in the Fourth Amendment.

I do not believe art. 14 is violated when officers rely on objectively reasonable beliefs developed from context and past experience, rather than verbal inquiry. No similar inquiry requirement is imposed by Federal law, unless circumstances make the officer’s belief unreasonable. Cf. Georgia v. Randolph, supra at 122 (declaring such requirement “unjustifiably impractical” when authority is “apparent”); United States v. Almeida-Perez, 549 F.3d 1162, 1170 (8th Cir.2008) (“police are entitled to draw the usual inferences from what they see and hear, even though further inquiry might prove the inferences wrong”). The standard articulated in Porter P. transforms the Fourth Amendment inquiry requirement from an exception into a rule. Article 14 does not require that result.

FN1. The defendant also sought suppression of statements. That issue was not addressed in the suppression order before us, and is not part of this appeal.

FN2. In his motion to suppress, the defendant did not argue that art. 14 of

the Massachusetts Declaration of Rights affords him any greater protection than the Fourth Amendment to the United States Constitution.

FN3. We “supplement a judge’s findings of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness’s testimony.” Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). Here, the only evidence before the judge was the testimony of Revere police Officer Mark Desimone who was called by the prosecution. Based on the judge’s findings, it is clear that she implicitly credited his uncontradicted testimony.

FN4. The Ocean Lodge closed in October, 2005.

FN5. Although there were some suggestions during oral argument that the woman who answered the door to room 138 was “stoned,” there was no evidence at the evidentiary hearing that the woman had used any drugs. The only evidence concerning this woman’s personal ingestion of drugs was Desimone’s equivocal testimony that “maybe” she was “under the influence of drugs” because she was “staring” and looked “shocked.” He did not testify concerning any of the woman’s physical features or any possible physical limitations exhibited by the woman to support his suggestion that she possibly was “under the influence of

drugs.”

FN6. There is nothing in the record identifying the woman who answered the door to the defendant’s residence.

FN7. This uncontested evidence came in through the Commonwealth’s witness, Desimone, at the evidentiary hearing on the motion to suppress. The Commonwealth does not challenge the fact that room 138 had been lawfully rented to the defendant for him (and others) to reside there.

FN8. The Commonwealth does not advance this argument, namely, that a search in the constitutional sense did not occur on account of Desimone’s intent in entering room 138; rather, the Commonwealth’s focus on intent, which we later discuss, pertains only to whether the entry was consensual. We nevertheless address the issue because we believe the Appeals Court’s analysis was misplaced.

FN9. In Commonwealth v. Porter P., 456 Mass. 254, 264-265 (2010), in providing guidance concerning who has common authority over a residence, we declared that, under art. 14, “a person may have actual authority to consent to a warrantless search of a home by the police only if (1) the person is a

coinhabitant with a shared right of access to the home, that is, the person lives in the home, either as a member of the family, a roommate, or a houseguest whose stay is of substantial duration and who is given full access to the home; or (2) the person, generally a landlord, shows the police a written contract entitling that person to allow the police to enter the home to search for and seize contraband or evidence. No such entitlement may reasonably be presumed by custom or oral agreement.”

FN10. The doctrine of apparent authority has been limited and does not encompass an entry premised on a mistake of law. See Commonwealth v. Porter P., supra at 267-268, and cases cited.

FN12. The dissent imagines various scenarios to contend that no ambiguity existed in the circumstances. The dissent suggests that Desimone reasonably could have believed that the woman who opened the door to room 138 shared the room with Victor or was otherwise authorized to be on the premises because

there was no information that the room was being rented to others and because of the lateness of the hour. Post at (Cowin, J., dissenting). That there was no information that the room was being rented to others is not the same as hard facts, such as actual information from another that the woman, or someone else, was renting or living in, or even appeared to be living in, room 138. Numerous assumptions could be drawn from “the lateness of the hour.” Desimone could have speculated that Victor had a girl friend, or that Victor was being robbed by a woman. Based on the record, which indicates that the police responded to calls at the hotel regarding prostitutes being robbed and providing their services there, Desimone could have speculated that Victor had engaged the services of a prostitute and was in the shower when the officer knocked on the door. All these scenarios could be possible or reasonable for a police officer to believe, but art. 14 requires an officer’s conclusions to be based “on facts, not assumptions or impressions.” Commonwealth v. Porter P., supra at 271. No less should be required when police seek to invade or intrude on the sanctity of the home (in the absence of exigency). Thus, the only facts before Desimone were that an unknown woman answered the door and she gave an ambiguous response (“I don’t know”) to his question concerning Victor’s whereabouts. These facts created an ambiguous situation at best concerning the woman’s relationship to the premises. The fact that Desimone inquired about Victor’s whereabouts suggests that he was uncertain as to the status of this unknown

woman.

FN13. The dissent essentially also relies on this assumption by stating that no ambiguity existed because the unknown woman who answered what Desimone believed to be Victor’s door “acted at all times as though [s]he were the keeper of the door.” The dissent does not point to any facts in the record to support this statement (other than the mere fact that the unknown woman answered the door). Post at (Cowin, J., dissenting), quoting United States v. Rosario, 962 F.2d 733, 738 (7th Cir.1992).

FN14. We are aware of cases from other jurisdictions that have determined consent to have been valid in circumstances where the purpose of the warrantless police entry (and where no exigent circumstances existed) was not to conduct a search. See, e.g., Davis v. United States, 327 F.2d 301, 303- 305 (9th Cir.1964) (determining police entry lawful based on manner of entry and intent of officers “to talk to the defendant” only); State v. Chapman, 97 Ohio App.3d 687, 690 (1994) (entry permissible because intent of police was “only to question a resident”). In our view, these cases do not focus on the pertinent inquiry, namely, the relationship of the party providing consent to the premises, and allow police to circumvent ascertaining whether a person is authorized to permit entry into a home. The decisions more fundamentally

ignore the purpose of the Fourth Amendment and art. 14 to protect persons from any warrantless, nonconsensual government intrusion into one’s home.

FN15. We believe that the circumstances of this case should have triggered “further inquiry,” Illinois v. Rodriguez, 497 U.S. 177, 188 (1990), under the Fourth Amendment, but we base our conclusion on art. 14. Because diligent inquiry was so plainly required in light of the ambiguous circumstances in this case, we decline to address the dissent’s assertion that diligent inquiry regarding the consenting person’s authority over the home is too severe a requirement to impose on police officers seeking consent for an entry or a search. Post at (Cowin, J., dissenting). We note that the requirement of diligent inquiry in Commonwealth v. Porter P., supra at 271-272, is triggered only where the person who granted consent to search a home did not have actual authority over the home, so the Commonwealth must rest on apparent authority to justify its search of the home.

FN16. In view of our conclusion, we need not address the defendant’s argument that the consent in this case was invalid because it was not freely and voluntarily given.

FN1. I have supplemented the judge’s findings with uncontested testimony as

noted.

FN2. Officer Desimone testified that he said, “Hello, Victor,” while knocking on the door.

FN3. The Commonwealth did not assert in the present case that there was actual authority. Without addressing whether actual authority may have existed here, I address the issue in the manner in which it was litigated, i.e., as a question whether there was apparent authority for the consent to enter.

FN4. As stated, the officer was not aware of any other occupants until after the woman opened the door and admitted him.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

The defendant was convicted by a jury in the District Court of unlawful firearm and ammunition possession, after having moved unsuccessfully to suppress certain evidence. The Appeals Court concluded that the defendant’s motion was wrongly denied and reversed the convictions. See Commonwealth v. Gomes, 75 Mass. App. Ct. 791 (2009). We granted the Commonwealth’s application for further appellate review. We reverse the defendant’s convictions.

Background. At the motion hearing, three police officers testified. We supplement the motion judge’s findings with uncontested facts drawn from the testimony of Officer Brian Oliveira, whose testimony we infer the judge credited in its entirety. The same cannot be said of the testimony of the other officers, as we shall explain. See Commonwealth v. Alvarado, 423 Mass. 266, 268 n.2 (1996).

On May 24, 2006, at approximately 8 A.M., a dispatch, prompted by a 911 telephone call, was made over the New Bedford police department radio system. The dispatch reported a man holding a gun in the air on Hazard Street.1 The man was described as a black male wearing a gray shirt and yellow pants standing outside a green Honda automobile.2 Officer Oliveira, who was traveling alone in a marked cruiser, was the first to arrive in the area. He arrived approximately three minutes after hearing the dispatch, and saw a green Honda parked on Hazard Street. He described the street as an area of gang activity from which the police had received “a lot of calls.” He got out of his cruiser and ordered the driver, the defendant, out of the automobile. Officer Oliveira was wearing a police uniform and had a gun with him, but he did not draw his gun at any time. A woman was sitting in the front passenger seat. The defendant got out of the automobile. He was a black male wearing a gray shirt and (according to the judge) green pants.3 The officer conducted a patfrisk of the defendant and asked him whether he had any weapons. The defendant stated that a weapon was in the automobile. Another officer who arrived at the scene discovered a gun under the front passenger seat.

Discussion. The defendant moved to suppress the physical evidence under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.4 In denying the motion, the judge concluded that the information provided by the dispatch “was not simply that an individual was carrying a firearm, but rather that he was standing on the street, pointing the gun in the air. Such behavior suggested a potential threat to public safety.” We disagree that the evidence justified the stop and frisk of the defendant.

There is no “firearm exception” to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip. See Florida v. J.L., 529 U.S. 266, 272-274 (2000). This case involves such a tip, as there was no evidence about the 911 caller’s identity or identifiability. See Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 794-795 (2009), and cases cited.5 See also Florida v. J.L., supra at 270-271. Moreover, there was no evidence of the caller’s basis of knowledge or veracity; no predictions by the caller of facts later confirmed by the police, to show the caller had inside knowledge; and no evidence of corroboration by the police of more than innocent details, i.e., the defendant’s presence near a green Honda, his race, and his gray shirt. See Florida v. J.L., supra at 270-272. Thus, there was no basis to conclude that the 911 caller’s report of possibly criminal behavior was reliable. See id. at 272 (reasonable suspicion requires that tip be reliable “in its assertion of illegality, not just in its tendency to identify a determinate person”). See also Commonwealth v. Gomes, supra at 795-796, and cases cited.

The court in Florida v. J.L., supra at 273, recognized that there may be “circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability[, such as] a report of a person carrying a bomb.” Similarly, we have recognized that, under art. 14, although an anonymous tip about “a concealed weapon” cannot alone create reasonable suspicion to justify an investigatory stop, such suspicion may arise where there is an “indication (in the tip or otherwise) of a threat to [someone's] physical well being,” i.e., an “imminent threat to public safety.” Commonwealth v. Alvarado, supra at 271, 274. The facts found by the motion judge in this case, however, do not show great or imminent danger. To be sure, this case concerned a report of a man holding a gun in the air rather than merely carrying a gun, as occurred in Florida v. J.L., supra, and Commonwealth v. Alvarado, supra. But that distinction alone does not transform this case into one of great or imminent danger. There was no evidence that the gun had been fired, pointed at another person, or otherwise handled in a way that posed a threat to someone, nor was there evidence that the defendant was a dangerous person. Moreover, when the officer approached the defendant, the defendant sat in his automobile and made no furtive, evasive, or otherwise suspicious movements, nor did he make any statements to arouse suspicion.6 Although Officer Oliveira responded to the dispatch more quickly than did the officer in J.L. (three minutes here versus six minutes in J.L., see Florida v. J.L., supra at 268), that difference is not meaningful.7 See Commonwealth v. Alvarado, supra at 273. Nor is the fact that the area was known for “gang activity.” See Commonwealth v. Mubdi, 456 Mass. 385, 398 (2010), and cases cited. By stopping and frisking the defendant solely based on the anonymous tip relayed in the dispatch, the police violated the defendant’s rights under the Fourth Amendment and art. 14, and the evidence should have been suppressed. Compare Commonwealth v. Barros, 435 Mass. 171, 176-178 (2001), with Commonwealth v. Mercado, 422 Mass. 367, 369-371 (1996).

Conclusion. The order denying the defendant’s motion to suppress is vacated, and an order shall enter allowing that motion. The judgments of conviction are reversed.

1The dispatch was described variously by the officers as a report of a man “with a gun” and “holding a gun in the air” (Officer Brian Oliveira); of “someone with a firearm, loading a firearm” (Officer Mark Giammalvo); and of a man “waving a gun around” (Officer Joshua Gerard). The judge acknowledged the variations in the officers’ testimony but discredited the testimony that the man was loading or waving a gun; she found only that the man was holding a gun in the air.

2The judge discredited Officers Giammalvo’s and Gerard’s testimony that the dispatcher described the man’s pants as brown. She also discredited Officer Gerard’s testimony that the dispatcher described the man’s shirt as green.

3The judge’s finding about the color of the defendant’s pants appears to be error, as there was no evidence about the actual color of the defendant’s pants, although there was conflicting testimony about how the dispatcher described the pants. See note 2, supra.

4We agree with the Commonwealth’s concession that our decision in Commonwealth v. Mubdi, 456 Mass. 385, 388-391 (2010), forecloses its claim that the defendant failed to comply with the requirements of Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004), where the Commonwealth failed in the trial court to raise any objection to the sufficiency of the defendant’s motion to suppress or his accompanying affidavit.

5The Commonwealth’s failure to introduce a recording of the 911 telephone call at the suppression hearing hampered the ability of the parties and the judge properly to address the caller’s reliability. Compare Commonwealth v. Mubdi, 456 Mass. 385, 396-397 (2010) (where recording of 911 call not played at suppression hearing, court’s assessment of caller’s basis of knowledge and veracity was limited), with Commonwealth v. Depina, 456 Mass. 238, 243-245 (2010) (playing of 911 call allowed court to determine caller’s basis of knowledge and that her statements were reliable as excited utterances). The Commonwealth would be well advised in the future to make reasonable efforts to introduce such evidence.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Indictments found and returned in the Superior Court Department on June 28, 2007.

A pretrial motion to suppress evidence was heard by Linda E. Giles, J.

An application for leave to prosecute an interlocutory appeal was allowed by Greaney, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

John Reinstein, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

CORDY, J. On June 28, 2007, a grand jury indicted the defendants, two Boston College students, Daniel Carr and John Sherman, on charges that they trafficked in cocaine over fourteen grams, possessed psilocybin with intent to distribute, and possessed marijuana with intent to distribute, following discovery of the illegal drugs in their campus dormitory room. On December 17, 2007, Carr filed a motion to suppress the drugs and other evidence seized as a result of a warrantless search. Sherman filed a similar motion and a motion to suppress his statements to the college police. After an evidentiary hearing, the judge granted the defendants’ motions to suppress.

On interlocutory appeal, the Appeals Court reversed. Commonwealth v. Carr, 76 Mass. App. Ct. 41 (2009). We granted the defendants’ application for further appellate review to consider the Commonwealth’s challenge to the judge’s findings that the initial warrantless entry into the room by Boston College police officers was unlawful, and that the defendants did not voluntarily consent to the subsequent search of their room. We conclude that the judge did not err in finding that the Commonwealth failed to satisfy its burden of proving the voluntary consent of the defendants to search their room. We affirm. Because the drugs and other evidence will be suppressed, we need not decide whether the initial entry into the room was lawful.2

1. Background. The following facts are drawn from the judge’s findings and the uncontested testimony at the motion hearing. Around midnight on February 14, 2007, Sergeant John Derick of the Boston College police department received a telephone call from April Wynn, resident director of Gonzaga Hall on the Boston College campus. Wynn told Sergeant Derick that she had received a report from two students that a “weapon” was inside a room in Gonzaga Hall. Wynn brought the two students to the campus police station, and they told Sergeant Derick that Daniel Carr had been bullying students and bragging about having a knife. The students stated that there was a third student, who wished to remain anonymous, who reported seeing the butt of a gun, possibly a toy gun, inside Carr’s room.

Sergeant Derick, along with Sergeant Anthony Cadogan and Officer Sean Daley, met with Wynn and another resident director, Austin Ash, in Wynn’s office. The three officers and two resident directors then proceeded to Carr’s room. The officers were all uniformed and armed. Sergeant Derick knocked on the door and announced himself as a Boston College police officer. A male voice inside the room stated, “Hold on, I’ve got to put my pants on.” Sergeant Derick knocked again after approximately thirty seconds had elapsed, and the door was opened. Sergeant Derick entered the room and the other two officers remained just outside the doorway. There were three young men in the room.

Sergeant Derick asked who lived in the room. One of the men, later identified as Zachary Taylor, stated that he did not live in the room and Sergeant Derick told him to leave. After Taylor left the room, Sergeant Derick told Carr and Sherman that he had received an anonymous report of a gun or weapon in the room. Carr stated that he had a “fake” gun but had thrown it out. Sergeant Derick then read Carr his Miranda rights and asked him where the gun was. Carr said, “I think it’s under the bed” and pointed to the bed. Sergeant Derick reached under the bed and retrieved what looked like a .45 caliber handgun, but, on closer inspection, proved to be a replica gun that may have been capable of shooting a projectile. The other two officers then entered the room and Sergeant Derick asked the students if there were more weapons in the room. Sherman produced and handed over a folding knife. A smaller knife was later found in a desk drawer and a kubotan, a martial arts weapon, was also recovered.

Based on his experience, Sergeant Derick believed that there could be more weapons in the room and told the defendants he wanted to search the entire room. Sergeant Cadogan handed each of the defendants a form that contained two parts: the top half, a “Miranda waiver,” contained text and a line for a signature; the bottom half, “consent to search,” also contained text, and had a line at the bottom that did not indicate whether it was for a signature.3 Carr asked if he could make a telephone call and was allowed to do so. Carr telephoned his father, who then spoke with Sergeant Derick, telling him, “It’s just a cap gun . . . a toy gun. What’s the big deal?” Each defendant filled out the form, signing the Miranda waiver, but neither defendant placed a signature on the “consent to search” half of the form.

Sergeant Cadogan and Officer Daley conducted a full search of the room while Sergeant Derick stepped out of the room to update Wynn and Ash. During the course of the search, Officer Daley found a bag of psilocybin mushrooms and a bag of marijuana. The defendants were then asked to step into the hallway and were placed under arrest. Subsequently, twelve bags of a white powdery substance were found in a jacket that both defendants said belonged to Taylor.4 Two additional bags containing white powder were found under the beds. There was a footlocker in the middle of the room that contained a locked box smelling of marijuana. The officers found a key in a desk drawer and opened the box which contained ten marijuana cigarettes, rolling papers, seeds, and the defendants’ passports. The officers also found a marijuana pipe and a piece of paper listing names and amounts of money.

2. Motion to suppress. In reviewing the grant or denial of a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error, Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and accord “substantial deference” to the judge’s ultimate findings. Commonwealth v. Monteiro, 396 Mass. 123, 131 (1985), citing Commonwealth v. Doucette, 391 Mass. 443, 447 (1984). “On a motion to suppress, ‘[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses, and not [the appellate] court.” Commonwealth v. Yesilciman, supra, quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980). “The clear error standard is a very limited form of review. . . . Where there has been conflicting testimony as to a particular event or series of events, a judge’s resolution of such conflicting testimony invariably will be accepted.” Commonwealth v. Yesilciman, supra, quoting Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984). A “trial judge’s ruling on a motion to suppress may be reversed where the facts found are clearly erroneous or ‘where justice requires [that the appellate court] substitute its judgment for that of a trial judge at the final stage.’” Commonwealth v. Spagnolo, supra at 517, quoting Commonwealth v. Moon, supra. “The ultimate legal conclusions to be drawn from the subsidiary findings of fact, however, are matters for review by this court.” Commonwealth v. Robinson, 399 Mass. 209, 215 (1987).

a. Consent. “When the police rely on consent to justify a warrantless [search], under both the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights], the prosecution ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’” Commonwealth v. Rogers, 444 Mass. 234, 237 (2005), quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968). “[T]he Commonwealth must provide us with more than an ambiguous set of facts that leaves us guessing about the meaning of this interaction and, ultimately, the occupant’s words or actions . . . . If either the officer’s request or the occupant’s response is so ambiguous that we are unable to discern whether the occupant voluntarily consented to [the search], our inquiry will be over and the entry must be deemed unlawful.” (Citations omitted.) Commonwealth v. Rogers, supra at 238-239.

The judge found that the Commonwealth had not established that the defendants gave consent to search their room. She based this finding on what she described as “discrepant” testimony and what she found to be “equivocat[ion]” in Sergeant Cadogan’s testimony. The evidence presented to the judge supports this finding.5

Sergeant Derick’s only testimony on the subject was that after he stated that he would like to search the room, he “asked that they fill out the consent to search,” and the defendants were handed the forms. Sergeant Cadogan testified that after Sergeant Derick said he wanted to search the room, the defendants were each given a form, and “[t]hey just filled it out.” When asked if there was any verbal response, Sergeant Cadogan first stated that there was none, but on redirect examination then stated that they said, “yes.”6 On cross-examination, Sergeant Cadogan again stated that “one of them said something.” When given his original report from the incident to refresh his memory, Sergeant Cadogan then stated that it was his testimony that he did not hear a verbal response from either defendant.7 Officer Daley testified that Carr “stated yes” when Sergeant Derick asked if they could search the room. He also testified that he asked Sherman if they could search his part of the room and Sherman “stated yes” and began to fill out the form. However, on cross-examination by Sherman’s counsel, Officer Daley stated that when he asked Sherman to fill out the form, Sherman began to fill out the form, and that was the extent of the conversation.

The judge was not persuaded that there was consent to the search based on the forms that were partially filled out by the defendants. After reviewing the forms, it is clear that both defendants placed their signature on the Miranda waiver portion of the form, but neither placed a signature on the half that gives consent to search. In sum, the evidence before the judge as to consent was equivocal and supported her conclusion that the Commonwealth had not met its burden.

b. Voluntariness of consent. In addition to finding that the Commonwealth had not satisfied its burden of proving actual consent, the judge went on to say that, even if she was able to “determine clearly that either defendant had given consent to search, there were coercive aspects to the officers’ exercise of authority that would vitiate a finding of voluntariness.” “The question whether consent was voluntary is a question of fact to be determined in the circumstances of each case, with the burden of proof on the government.” Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976). The Commonwealth must prove “consent unfettered by coercion, express or implied, and also something more than mere ‘acquiescence to a claim of lawful authority.’” Commonwealth v. Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976), quoting Bumper v. North Carolina, 391 U.S. 543, 549 (1968). While no factor by itself is conclusive, factors to consider include, but are not limited to: the presence of armed, uniformed officers; whether the defendant was informed of his right to refuse consent; the age, intelligence, and other personal characteristics of the defendant; and whether the defendant was in custody when consent was given. See Commonwealth v. Sanna, 424 Mass. 92, 97-98 n.10 (1997); Commonwealth v. Harmond, 376 Mass. 557, 561-562 (1978).

The judge’s ultimate conclusion that the Commonwealth had not proved voluntary consent was supported by her subsidiary findings that: (1) “[Sergeant] Derick immediately demanded the occupants’ identities and ordered Taylor to leave; thus, his very first acts had a compulsory dimension to them”; (2) the “armed officers completely blocked the only exit[,] and the two resident directors {stood] in the hallway[, lending] further institutional presence”; (3) “[Sergeant] Derick signaled his distrust of the defendants”; and (4) Sergeant Derick’s “pronouncement, ‘I would like to search the room,’ sounded more like an order than a request.”8 The judge found that “an objective person would not have felt able to refuse the officer’s request or leave the room.” Each of her subsidiary findings were in turn based on testimony adduced at the hearing.

The Appeals Court concluded “as a matter of . . . independent judgment that the facts and circumstances establish that the consent was free and voluntary and neither coerced nor mere acquiescence to a claim of lawful authority.” Commonwealth v. Carr, 76 Mass. App. Ct. 41, 52 (2009). Because a finding of voluntariness is a question of fact, it should not be reversed absent clear error by the judge. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). “So long as the judge’s account is plausible in light of the entire record, an appellate court should decline to reverse it. ‘Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997), quoting Gallagher v. Taylor, 26 Mass. App. Ct. 876, 881 (1989).

The judge was in the best position to assess the weight and credibility of the testimony given at the motion hearing. Although the Appeals Court reviewed the evidence presented and concluded that consent was voluntarily given, its alternate view of the facts and circumstances does not indicate clear error on the part of the judge, and we find none.9

3. Conclusion. The Commonwealth failed to satisfy its burden to prove that consent was freely and voluntarily given; therefore, we affirm the judge’s order allowing suppression of the drugs and other evidence seized in an illegal search of the defendants’ room.

2Sherman’s motion to suppress statements he made to the Boston College police officers on the night of February 14, 2007, is based on claimed inadequate Miranda warnings on the Miranda waiver and consent to search form that he signed. The judge did not address the issue, and neither the Commonwealth nor the defendants raises it on appeal. Sherman does not point to any statements he made before the unconsented-to search that are relevant to the charges pending against him.

3The officers also testified as to their recollections of what the defendants said after Sergeant Derick stated that he wanted to search the entire room. We summarize and discuss that testimony below.

5In a footnote, the Appeals Court concluded that, because Carr stated in an affidavit that he “gave police permission to search,” the issue of actual consent has been conceded by the defendants. Commonwealth v. Carr, 76 Mass. App. Ct. 41, 45 n.5 (2009). The affidavit was not part of the evidentiary record before the judge and cannot be considered on appeal. The question of actual consent was a live and contested issue argued at the motion hearing. The judge properly ruled on the evidence presented by the Commonwealth, which did not include Carr’s affidavit.

6On direct examination of Sergeant Cadogan, the following exchange took place:

Theprosecutor: “Okay. Did you ask if you could search the room?”

DefensecounselforCarr: “Objection.”

Thejudge: “I’ll allow it.”

Thewitness: “Correct.”

Theprosecutor: “Okay. And then you gave the paper?”

Thewitness: “Correct.”

Thejudge: “And what was the response?”

Thewitness: “They just filled it out, Your Honor.”

Thejudge: “So you asked the question. Was the question asked to both gentlemen?”

Thewitness: “Both gentlemen.”

Thejudge: “And what was the response, if any?”

Thewitness: “Well, we have a –- we asked them we have a consent to search form. Do you want us searching your room. You need to fill this out, and they just filled it out, Your Honor. Just one party had to make a phone call.”

Thejudge: “Specifically to that question, did either of the students make any verbal response?”

Thewitness: “No, ma’am.”

Theprosecutor: “They did not say ‘yes’ or ‘no’ when asked if you could search the room?”

Thewitness: “I think one of them said ‘yes,’ but it was no[t], ‘no, you can’t search my room.’”

Theprosecutor: “Okay. Did they say ‘yes’ or did they say ‘no’?”

Thewitness: “They said yes.”

Thejudge: “Who is it? When you say ‘they,’ could you be more specific? Did both of them say, ‘yes, you can search.’”

Thewitness: “The one that wasn’t on the phone, he was in the room. He said, ‘Yes, you can search the room.’ And then shortly after the party that was on the phone came off and filled out the form.”

7The following exchange then took place on recross-examination of Sergeant Cadogan by Sherman’s defense counsel:

DefensecounselforSherman: “So, as you sit here today your testimony is you think one of them may have said something.”

Thewitness: “I know one of them said something.”

DefensecounselforSherman: “You know one of them said something?”

Thewitness: “Correct.”

DefensecounselforSherman: “Now, do you recall writing a report?”

Thewitness: “Do I recall writing a report?”

DefensecounselforSherman: “Yep.”

Thewitness: “You have a copy.”

DefensecounselforSherman: “You wrote a report.”

Thewitness: “I did.”

DefensecounselforSherman: “And there’s nothing in the report about any verbal agreement by John Sherman that you could search his room; is that right?”

Thewitness: “I’d have to look at the report, sir.”

DefensecounselforSherman: “Okay. Same report. And I’d just ask you to pay attention to the third paragraph. You can read it to yourself.”

Thejudge: “Your memory now is that you didn’t hear any verbal response. A form was handed to this gentleman?

Thewitness: “Correct”

Thejudge: “Okay. So that’s your testimony.”

Thewitness: “Correct.”

8It is also plain from the record that this encounter took place around midnight.

9The judge also concluded that any consent was obtained through the exploitation of a prior illegality — the initial entry into the room. We do not consider this in our assessment of her conclusions that consent had not been established and consent was not given voluntarily.

David D. McGowan, Assistant District Attorney (Joshua I. Wall, Assistant District Attorney, with him) for the Commonwealth.

COWIN, J. Following the shooting of four men in the basement of a home in the Dorchester section of Boston on December 13, 2005, the defendant, Calvin Carnes, Jr., was convicted in the Superior Court of four counts of murder in the first degree on theories of deliberate premeditation and felony-murder. The victims were Edwin Duncan, Christopher Vieira, Jason Bachiller, and Jihad Chankhour. The defendant was convicted also of three counts of armed robbery; two counts of possession of a firearm without a firearm identification (F.I.D.) card; possession of a large capacity firearm; and larceny over $250.

*814

On appeal, the defendant contends that the motion judge (who was not the trial judge) improperly denied his motions to suppress his statements to the police. With respect to the trial, he asserts that the evidence was insufficient to justify an instruction on joint venture on the armed robbery and firearms charges, and that the judge erred also by admitting in evidence charts summarizing telephone records and related testimony. With respect to the jury deliberations, the defendant alleges that another judge [FN1] acted improperly when she (a) dismissed a deliberating juror; (b) refused to declare that deliberations had been due and thorough, see G. L. c. 234, § 34; and (c) despite allegations of misconduct by jurors, refused to inquire of the jurors or declare a mistrial. We reject the defendant’s claims, affirm his convictions, and, after review of the entire record pursuant to our responsibility under G. L. c. 278, § 33E, decline to exercise our power to grant extraordinary relief.

1. Facts. We summarize the facts the jury could have found. Other evidence is discussed in conjunction with the specific issues raised. On the evening of December 13, 2005, four young men were shot to death in the basement of the Bourneside Street home of the victim Duncan. Three of the four victims had gathered frequently at that location to listen to and record music and “hang out.” The fourth, Chankhour, was not a frequent participant, but was present that night to repair some of the recording equipment. The group had no disputes or “problems” with any other groups of people, and its members got along well with each other. The young men were serious about their music and dedicated to it and to a music recording group they had formed. The defendant was friendly with some members of the group, but was not ordinarily present during the basement music sessions.

Two guns were often seen in the basement: an AK-47 assault rifle and a Mosberg pump action shotgun. These weapons were used for sound effects in recording music and also for the protection of expensive recording equipment. A “rule” of the group was that all weapons must “come into the basement unloaded” to avoid accidents. Prior to the homicides, one of the victims, *815Vieira, had purchased a nine millimeter Glock pistol with green “glow in the dark” sights; he displayed it to numerous people, treating it “like a toy.” Two days before the murder, a person who was present early in the evening saw three guns in the basement: the AK-47 rifle, the shotgun, and Vieira’s Glock pistol.

At about 9 P.M., Duncan’s mother heard the sound of a gunshot and saw a male whom she did not recognize outside the house. He was standing near Vieira’s black Ford Escort automobile, but did not look like Vieira. A neighbor heard two or three “pops” at about the same time and saw a dark automobile driving away from the Duncan home. Duncan’s mother tried to reach her son on his cellular telephone; when she could not, she went to the basement and saw her son and one of the other victims lying on the floor “with blood everywhere.” She telephoned 911 and the police responded immediately.

There was no sign of a forced entry or any physical struggle. All four victims died of gunshot wounds. Twelve shell casings were found inside the basement and one outside. They were all fired from the same weapon and all were consistent with being fired from a nine millimeter Glock pistol. On the day after the murder, witnesses saw the defendant with a Glock handgun with green sights. That day he also mentioned to some friends that he had an “AK” and a “pump” that he wanted to sell. Six months later, a nine millimeter Glock pistol with green sights was found in the possession of a person with no apparent relation to the defendant. Test firing determined that this was the firearm used in the shootings.

Because the dark automobile that was seen departing the Duncan home might have been Vieira’s (based on Duncan’s mother’s testimony that she saw a person standing near Vieira’s black automobile), there was speculation at first that Vieira might have been the killer. On the night of the murder, Tanya Diaz spoke by telephone with the defendant and said she had heard that Vieira had killed some people. The defendant replied, “No, ‘Fat Boy’ [Vieira's nickname] is dead.”

A few days after the killings, Vieira’s automobile was found on a street in Dorchester, unlocked and with the keys in the ignition. A fingerprint located on the exterior door frame of the *816automobile was identified as the left index finger of the defendant. The automobile appeared to have been “wiped down” in places, including the driver’s side door handle.

In February, 2006, the defendant admitted to his friends Maria Ortiz and Cynthia Small that he had committed the murders. He said, “It was an accident, they were [my] friends,” and he began to cry. He explained that he had been in the basement and that everyone had been looking at the Glock firearm and, when he held it, he became nervous and shot someone. Then, according to Small, the defendant said that “everyone crowded around him . . . he just got more nervous and the gun went off and shot everyone.” The defendant also told Small that if Robert Turner, his friend who was in the basement at the time of the shootings, had not run when he did, “he would have died, too.” The defendant informed Ortiz that he had told the police that he had been with her the night of the murders and asked if she would corroborate his story. She did not respond. The defendant was arrested three months later on May 19, 2006.

The defendant testified that he had actually been with his friend, Turner, on the evening of December 13, 2005. Contrary to what he had told Ortiz, he testified that he was visiting with Katrina Hall at the time of the murders. He admitted that this alibi was different from the one he related to the police in two statements (see infra) in which he denied being in the basement of Duncan’s home on the night of the homicides and denied killing his friends. He testified also that he did not tell Ortiz and Small that he had committed the murders.

In rebuttal, the Commonwealth called Katrina Hall, who had a specific memory of watching the news on the night of the murders and seeing a report about the shootings. She was with her sister that night and had no visitors. Later that month, the defendant did visit her and took out a black pistol and put it under her mattress. She chastised him because her daughter was there. He also mentioned that he had an AK-47 rifle for sale.

2. Motions to suppress. The defendant made two statements to the police, one on December 22, 2005, and another on February 10, 2006. The defendant contends that both his statements should have been suppressed. We consider each in turn.

a. December statement. While the defendant’s argument with *817respect to the December statement is not altogether clear, he appears to assert that he was subjected to a custodial interrogation that day and that, because he did not receive Miranda warnings, his statement must be suppressed. He maintains also that, apart from the requirement that Miranda warnings be provided, his statement was not made voluntarily because he was deprived of the information that was necessary to render the statement voluntary, i.e., that he was a suspect.

The motion judge found that the defendant was not in custody at the time of the December statement, and thus no Miranda warnings were required. See Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001), citing Commonwealth v. Morse, 427 Mass. 117, 121-127 (1998), and Commonwealth v. Bryant, 390 Mass. 729, 737 (1984). The police are not required to inform the defendant of his status as a suspect. See Commonwealth v. Groome, supra at 212 n.13. See also Commonwealth v. Raymond, 424 Mass. 382, 393 (1997) (“Neither the subject matter of the questioning nor the defendant’s status as a suspect has any bearing on whether the defendant understands that he need not answer the questions”). Accordingly, the only question before us with respect to this statement is whether the judge’s determination that the defendant was not in custody is supported by the evidence. We conclude that the finding is warranted.

i. Facts. We summarize the judge’s comprehensive findings. A few days before the December 22, 2005, interview, Detective Russell Grant and Sergeant Detective James Wyse of the Boston police department told the defendant’s father that they wanted to speak with the defendant. (The defendant was nineteen at that time.) The defendant’s father indicated to the defendant that he should speak with the police and cooperate with them. The defendant telephoned the detectives and agreed to meet them at a duplex house that was owned by one of his parents. The defendant’s father, a contractor, was working on the house and suggested it as a convenient location for the gathering.

The two detectives met with the defendant and his father at about 11:15 A.M. on December 22. The defendant’s baby daughter was also present. The detectives introduced themselves and explained that they wished to speak with the defendant about the Bourneside Street homicides and that they were interviewing *818friends and family of the victims. The defendant and his father were both aware of the killings. The defendant agreed to the questioning.

The defendant’s father and the defendant’s baby were present for the entire interview. The men sat at a table. The defendant was first queried for about twenty minutes without an electronic recording. The police then asked the defendant if he would agree to an audiotaped interview. The defendant agreed and the taped interrogation lasted about thirty-six minutes. During the taped segment, the defendant received a short telephone call from his baby’s mother. The tape recording was turned off while the defendant spoke on the telephone.

The defendant described his relationships to the victims and told the police that he had spoken with Vieira on the night of the murders; they had planned to meet at the basement studio to “chill[], smok[e] and hang[] out,” but he changed his plans and, instead of going to the studio, he met Maria Ortiz and was with her until 11 P.M. Then he took a bus to his apartment.

The defendant made essentially the same statements both in the interview prior to taping and in the recorded session. At the conclusion of the taped questioning, the defendant was asked if he felt uncomfortable or pressured or coerced. He responded in the negative and expressed interest in helping the police. Upon inquiry, the defendant’s father stated that he was content with the interview and that it had been conducted very professionally.

The judge found that the defendant was not in custody at the time of the interview. Accordingly, he ruled that the police were not required to provide the Miranda warnings and that there was no meaningful question whether the defendant voluntarily waived any rights. The judge ruled as well that the police need not inform the defendant that he was a suspect. The judge found ultimately that the defendant’s statements (both recorded and unrecorded) were made voluntarily.

ii. Discussion. In reviewing a judge’s denial of a motion to suppress, we accept the judge’s findings of fact and will not disturb them absent clear error. See Commonwealth v. Gomes, 453 Mass. 506, 508-509 (2009); Commonwealth v. Jones, 375 Mass. 349, 354 (1978). We determine independently the correctness of the judge’s application of constitutional principles to *819the facts found. See Commonwealth v. Mello, 420 Mass. 375, 381 n.8 (1995). Questions of credibility are the province of the judge who had the opportunity to observe the witnesses. See Commonwealth v. Martin, 447 Mass. 274, 280 (2006).

Miranda warnings are required only when an individual is subjected to custodial interrogation. See Commonwealth v. Morse, 427 Mass. 117, 122 (1998). To determine whether a defendant is in custody we generally consider four factors: “(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest” (Groome factors). Commonwealth v. Groome, supra at 211-212, citing Commonwealth v. Morse, supra at 121-127, and Commonwealth v. Bryant, supra at 737.

Consideration of the Groome factors leads to the clear conclusion that the defendant was not in custody at the time of the interview. He was interviewed at about noon in a house owned by his family. He was accompanied by his father and baby daughter. The interview was conducted at a table with the men seated at it and was informal and cordial. The entire questioning (both the untaped and taped segments) lasted only about one hour and fifteen minutes. The defendant received a telephone call during the interview. At the conclusion of the interview, both the defendant and his father expressed satisfaction with the manner in which it had been conducted. The officers never conveyed to the defendant any suggestion that he was a suspect. The defendant was free to leave the interview and was not arrested at its conclusion.

A statement is voluntary if, in the totality of the circumstances surrounding the making of the statement, the defendant’s will is not overborne, so that the statement is the result of a free and voluntary act. See Commonwealth v. Burton, 450 Mass. 55, 61 (2007); Commonwealth v. Sneed, 440 Mass. 216, 222 (2003). *820The judge’s finding that the defendant’s statement was made voluntarily is also supported by the evidence. The defendant was nineteen at the time of the interview and living in his own apartment. He was not under the influence of alcohol or drugs. Although his father had said that he should cooperate with the police, this instruction did not deprive the defendant of the ability to make a voluntary choice on the subject. The defendant spoke freely with the police, giving narrative answers and an exculpatory account of his actions on the night of the murders. There was no coercive conduct or atmosphere during the interview and the defendant’s will was not overborne. Accordingly, the judge was correct in his conclusion that no Miranda warnings were required and that the police did not need to inform the defendant that he was a suspect.

b. February statement. The defendant claims that his statement of February 10, 2006, was obtained in violation of his rights under the Fifth Amendment to the United States Constitution and that any waiver of rights was not knowing and voluntary because he was under arrest for the crime of trespassing, but was questioned as the main suspect in the homicides, and was not given his Miranda warnings “concerning the Bourneside murders.”

i. Facts. We again summarize the detailed findings of the judge. On February 10, 2006, before any arrests had been made for the Bourneside Street homicides, the defendant was arrested at about 11 A.M. for trespassing and breaking and entering. The defendant was transported first to the police station for the area of Boston in which he had been arrested, and then to the Boston police homicide unit. The defendant was given an opportunity to make a telephone call, and he did so. The interview commenced at about 12:50 P.M.; Detectives Grant and Wyse were present. Detective Grant conducted the interview. The defendant was told that he had been arrested for a breaking and entering that had occurred that day and that he was being charged with that crime. Detective Grant said that he wanted to “talk with [the defendant] about — some more about [his] friends that were murdered up on Bourneside Street.” The detective said also, “you’ve been arrested and . . . you’re in custody now, and I want you to understand, you’re in custody for that arrest, *821for that B&E, you’re not being charged with anything to do with the homicide.” The defendant was then provided a consent form for an audio recording and informed that he could choose whether to have the interview recorded. He read and signed the form, agreeing to the electronic recording.

The detective explained to the defendant that he must read the defendant the Miranda warnings because he was in custody on the breaking and entering charges and the detective wanted to be certain that the defendant understood his rights. He repeated that the defendant was not being charged with the homicide. A Miranda warning form was shown to the defendant. It contained the four Miranda warnings plus a statement that, if the defendant decided to answer questions without a lawyer present, he still had the right to stop answering at any time until he spoke to a lawyer. The detective read each of the warnings; the defendant read them and said he understood each one and initialed the form after each warning.

The detective repeated that the police wanted to speak with him about his friends who were murdered on Bourneside Street. He asked the defendant to state where he was and what he was doing on the night of the killings. The defendant once more provided an exculpatory account of his actions that night, stating that “Fatboy” had called him at about 7 P.M. and arranged to meet him at Bourneside Street to “chill,” smoke and drink. Again, the defendant said that he had changed his mind and that he and his friend “Rob” (Turner) went instead to the apartment of Ortiz and Small and later to the Fairlawn housing project. The defendant agreed with the detective that his account was essentially the same as it had been at the prior interview.

Detective Grant informed the defendant that he had just interviewed Turner and that Turner had provided a different account of the night of the killings, saying that he and the defendant separated after leaving the women’s apartment. The defendant said that he did not know why Turner would say this; Detective Wyse urged the defendant to tell the truth. The defendant insisted that he was telling the truth and that he had not been on Bourneside Street on the night in question. The interview lasted about one hour, ending about 1:50 P.M., and the defendant was not arrested for the murders at that time.

*822

The judge concluded that the defendant was in custody during this interview, that he received “complete” Miranda warnings at the outset of the questioning, and that the defendant had knowingly, intelligently, and voluntarily waived his Miranda rights. [FN2]

ii. Discussion. A waiver’s validity is determined in light of the “totality of the circumstances,” which includes, “among other things, the defendant’s age, education, intelligence, physical and mental stability, and experience with and in the criminal justice system.” Commonwealth v. Anderson, 445 Mass. 195, 203 (2005). “In order for a waiver to be ‘knowing’ and ‘intelligent,’ the defendant must understand ‘the [Miranda] warnings themselves,’ but does not need to understand or appreciate the tactical or strategic consequences of waiving Miranda rights.” Commonwealth v. Hilton, 443 Mass. 597, 606 (2005), quoting Commonwealth v. Raymond, 424 Mass. 382, 393 (1997).

The defendant’s position is that he could not and did not validly waive his Miranda rights because he was not told that he was the prime suspect in the killings when he was subjected to custodial interrogation on February 10, 2006. The judge’s determination that the defendant’s waiver of his rights was knowing, intelligent, and voluntary is supported by the evidence; accordingly, the waiver was valid and the defendant’s statements were admissible.

As the judge found, the defendant was not impaired in any way. The defendant read fluently and spoke well. The tape recording of the session indicates that the defendant read the Miranda warnings and the waiver language aloud. He initialed each warning and signed the waiver. Based on the defendant’s testimony at the hearing on the motions to suppress, as well as his statements during the tape-recorded interview, the judge could permissibly find that the defendant was of sufficient intelligence to understand and waive his rights.

The defendant understood that he had the right to remain silent and to consult with an attorney. He wished to give the police his exculpatory account of his whereabouts on the night *823of the murders. As the judge said, the defendant believed that “the officers would believe him . . . [and] that telling this version would help him.” The judge also found that the defendant spoke with the police freely and voluntarily. This finding is supported. The evidence indicates that the police behavior was not coercive. The fact that the police told the defendant that “the truth would come out,” that they did not believe him, and that Turner had provided a different story did not render the waiver involuntary. Contrary to the defendant’s argument, the law does not require that the police inform the defendant whether he is a suspect. See Commonwealth v. Groome, 435 Mass. 201, 212 n.13 (2001).

3. Joint venture instruction. The defendant contends that, because there was insufficient evidence to support a finding of a joint venture, the judge erred by instructing on that theory. [FN3] The defendant did not object to the instruction.

The judge limited the jury’s consideration of the joint venture theory to the three charges of armed robbery and the two charges of possession of a shotgun and possession of an AK-47 rifle. [FN4] A joint venturer is “one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime.” Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979). The defendant’s intent may be inferred from his knowledge of the circumstances and participation in the crime. Id. [FN5] It was the Commonwealth’s theory that the defendant shot the victims; that he and Turner then stole the Glock pistol, the shotgun, and the assault rifle; and that together they then wrapped the assault rifle in a trash bag secured with duct tape and stored the weapons for at least some time in Cynthia Small’s house.

As stated, the defendant told his friends Ortiz and Small that Turner was present at the Bourneside Street basement on the night of the killings and that, if Turner had not run from the *824scene, he would have been shot as well. There was also testimony that, two days before the homicides, there were three weapons in the Bourneside Street basement: an AK-47 assault rifle, a shotgun, and the nine millimeter Glock pistol with shiny green sights. In addition, one of the defendant’s roommates remembered that one night in December, before Christmas, the defendant and Turner came to the apartment, obtained trash bags and duct tape, and left with a black trash bag wrapped in gray duct tape. Small, a friend of both the defendant and Turner, recalled that on the night of the murders the defendant left with her a black trash bag package with duct tape around it. Turner, who accompanied the defendant, left a second package. At approximately 1 A.M., after seeing news of the four murders in a basement, Small looked in one of the packages and saw a weapon. She called the defendant’s cellular telephone and asked if he had just killed some people. The defendant replied, “Don’t call my phone asking questions like that.”

That afternoon, the defendant, Turner, Ortiz, and Small were at Small’s house and the defendant was in possession of a handgun. He also mentioned an “AK” and a “pump” that he wanted to sell to “put money in his pocket.” Turner agreed that the defendant should sell the weapons. That evening, the defendant and Turner visited Turner’s friend, Tanya Diaz. The defendant took a handgun from his waistband and asked Diaz to hold it for him. The defendant asked Diaz for rubbing alcohol and a rag. He poured alcohol on the rag and began wiping the weapon all over. Turner looked at the handgun and said, “That shit is nice, isn’t it?” Diaz described the weapon as black with “little green lights on the top.” The defendant put the handgun in his waist and he and Turner left.

Katrina Hall testified that later in December (sometime after the night of the murders), the defendant and Turner were at her house. The defendant asked a friend of Hall’s if he knew anyone who needed some weapons because he had an AK-47 rifle and “all types.” Turner looked at the defendant and said, “Man, what are you doing? Shut up.”

Thus, the jury reasonably could infer that the defendant would not have displayed the weapons so freely in Turner’s presence had Turner not participated in the robbery. Because the evidence *825supported a reasonable inference that Turner participated in the robberies and possessed the shotgun and the AK-47 rifle with the defendant, the evidence warranted a joint venture instruction.

4. Admission of charts. The defendant argues that charts created by the Boston police summarizing telephone records and witness testimony regarding the times of the calls and the makers of the calls should not have been admitted in evidence. The underlying records concerning the defendant’s cellular telephone calls for the relevant period were admitted without objection. The defendant did object when the Commonwealth moved to introduce the summary charts; the judge proposed a limiting instruction, which the defendant indicated did not satisfy his concerns, but that he would “accept.” The judge gave the instruction which is reprinted in the margin. [FN6] The defendant later indicated that he was satisfied with the exhibits presented to the jury. We need not decide whether an objection was properly preserved, as we discern no abuse of discretion in the judge’s ruling.

Summaries of testimony are admissible, provided that the underlying records have been admitted in evidence and that the summaries accurately reflect the records. See Commonwealth v. Guy, 454 Mass. 440, 446 n.5 (2009); Welch v. Keene Corp., 31 Mass. App. Ct. 157, 165-166 (1991); Mass. G. Evid. § 1006 (2010). See also United States v. Dorta, 783 F.2d 1179, 1182-*8261183 (4th Cir.), cert. denied, 477 U.S. 905 (1986) (no abuse of discretion where charts summarized evidence already admitted). Here, the information on the charts had been presented through a representative of Verizon Wireless (Verizon), a detective, and other civilian witnesses. The Verizon witness explained that the information on the charts “match[ed] the raw data.” Other witnesses identified the telephone numbers on the charts. In addition, the judge cautioned the jury to evaluate the evidence independently.

5. Jury deliberations. The defendant states that the judge did not adhere to the requirements of G. L. c. 234, § 34, and that violation of that statute also implicates his right under the Sixth Amendment to the United States Constitution to a fair and impartial jury. Specifically, the defendant maintains that the judge violated the statute by unlawfully prolonging deliberations after the jury five times reported deadlock. G. L. c. 234, § 34, provides:

”If a jury, after due and thorough deliberation, return to court without having agreed on a verdict, the court may state anew the evidence or any part thereof, explain to them anew the law applicable to the case and send them out for further deliberation; but if they return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law.”

The decision as to when the jury’s deliberations have been “due and thorough” lies within the discretion of the judge, see Commonwealth v. Haley, 413 Mass. 770, 779 (1992), and requires evaluation of the “complexity of the case, the extent of evidentiary conflict on material issues, and the total length of time the jury [have] spent attempting to resolve those conflicts.” Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982), citing Thames v. Commonwealth, 365 Mass. 477 (1974). See Commonwealth v. Semedo, 456 Mass. 1, 21 (2010).

Jury deliberations began on Friday, June 6, 2008. On Thursday, June 12, after the jurors were sent out to resume their deliberations, the judge informed counsel that she had just learned that two jurors had airline tickets to leave the country. One juror was scheduled to depart that night to meet with her family in *827Jordan [FN7]; a second was leaving on Saturday to attend her father-in-law’s funeral in Barbados on Monday. The judge indicated that no action was necessary at that time and that deliberations would continue.

At 3:20 P.M., the jury wrote that they were deadlocked. The judge discussed the issue with counsel at 4:15 P.M. [FN8] The judge indicated that, because at least one juror may have to be discharged, the jury might be newly constituted before further deliberations. Thus, there was no purpose in giving a “Tuey-Rodriquez charge,” an instruction given when jurors report deadlock after “due and thorough deliberation.” The instruction is designed to urge the jury to reach a verdict by giving more serious consideration to opposing points of view. See Commonwealth v. Rodriquez, 364 Mass. 87, 98-101 (1973), modifying Commonwealth v. Tuey, 8 Cush. 1, 2-4 (1851). Neither party objected. A voir dire of the two jurors was conducted and they were both discharged.

The next morning, Friday, June 13, two alternates were seated and the jury were instructed to begin deliberations anew. The judge specifically told them that starting deliberations anew meant that “you start from the beginning as if there had not been deliberations up until this point.” She then asked; “Is that clear to everybody? You start from the beginning in your deliberations.” The newly constituted jury began deliberations at 10 A.M. At 3:50 P.M., the jury wrote to the judge indicating that they were deadlocked. The judge found that deliberations had not been “due and thorough” because the jury had been newly reconstituted only that morning. She proposed sending the jury home for the weekend. Both counsel agreed and the judge did so.

On Monday, June 16, at 9:40 A.M., before the jury had resumed *828deliberations, the judge reported receiving another note from the jury. It read: “The addition of [two] new jurors has not changed the position of the jury. At this point, all but one juror is in agreement and there is no hope of that one juror changing their mind. She began to feel verbally abused on Friday and is very upset.” The judge indicated that she would acknowledge the jury communication, but would have the jury continue to deliberate. Again, neither counsel objected.

Later that day, at 11:30 A.M., the judge received an additional communication from the jury. This note stated: “One juror had expressed concern that continued heated debate would cause a [flare up] of her medical condition. This type of heated debate would be required to make progress in the deliberative process. We are still at a deadlock.” With the agreement of the parties, the judge conducted a voir dire of this juror (juror no. 15). The juror, a nurse, indicated that she had an autoimmune disorder, but could continue with deliberations. She stated also that she had been unaware that the note had been sent. This note was not treated by any of the trial participants as a communication of deadlock that required action by the court.

After juror no. 15 returned to the jury, the prosecutor disclosed to the judge that he had learned that this juror had made material misrepresentations in her responses to the juror questionnaire. The judge declined to take any action on that information, and the prosecutor sought relief from a single justice of this court pursuant to G. L. c. 211, § 3. See part 6, infra.

At 4 P.M., the judge received another note which read: “Jury has not made any progress toward consensus. We are still firmly deadlocked 11:1. The jury is very frustrated.” Due to the late hour, the judge denied the defendant’s request for a Tuey-Rodriquez charge; instead, she dismissed the jurors for the day, explaining that she would provide additional guidance the following morning.

On the next day, Tuesday, June 17, defense counsel requested that the judge declare a deadlock or a mistrial. The judge did not grant the request. Rather, as a result of the information the prosecutor had revealed to the court on the previous day and a ruling by a single justice of this court on the petition pursuant *829to G. L. c. 211, § 3, a voir dire of juror no. 15 was conducted. The voir dire took place prior to the resumption of jury deliberations and resulted in the discharge of juror no. 15 for cause. An alternate juror was selected. Defense counsel objected to the removal of the juror and to the resumption of jury deliberations and requested that the judge declare either a deadlock or a mistrial. The judge stated that she had not found the jury to be deadlocked, thereby implicitly denying the defendant’s motions. At approximately 12:05 P.M., the judge instructed the jury to begin their deliberations anew. On the following day, Wednesday, June 18, the jury returned their verdicts at approximately 2:40 P.M.

The defendant maintains that the judge “forced” a guilty verdict by ordering the jury to return to deliberations after five reports of deadlock rather than giving a Tuey-Rodriquez instruction. This is significant because, had the jury been so instructed at one of their reports of deadlock, another report of deadlock would have precluded the judge from requiring further deliberation without the jury’s consent. See G. L. c. 234, § 34.

The short answer to this contention is that there never was a jury whose deliberations had been “due and thorough” thereby requiring the giving of a Tuey-Rodriquez instruction. When the judge received the first report of deadlock, late in the day on June 12, she and counsel were aware that two of the deliberating jurors had travel plans that would be likely to force a change in the jury’s composition. The two jurors were removed without objection by defense counsel. Because no further deliberations were to be conducted by the jury as previously constituted, there was no reason to give a Tuey-Rodriquez charge at that time. Indeed, such an instruction would have been inappropriate. The next morning, two alternates were added to the jury and a new jury began deliberations and were instructed forcefully and precisely to “start from the beginning.” See Commonwealth v. Haywood, 377 Mass. 755, 770 n.15 (1979). See also Commonwealth v. Olavarria, 71 Mass. App. Ct. 612, 618-622 (2008) (no error in not declaring mistrial when original jury twice claimed they were at impasse; discharge of juror and replacement with new juror resulted in new jury, rendering G. L. c. 234, § 34, no longer applicable).

The second jury reported that they could not reach a verdict *830on June 13 at 3:50 P.M., six hours after they had begun deliberations. When the judge stated that deliberations at that point had not been “due and thorough,” the defendant did not object and did not request a Tuey-Rodriquez charge. The judge acted within her discretion in determining that the deliberations of the second jury had not been “due and thorough.” Over sixty witnesses testified during three weeks of trial. There were more than 200 exhibits. Eleven indictments were at issue, many of them dependent upon separate and distinct evidence. It was clearly appropriate for the judge to determine “that deliberation had not yet been ‘due and thorough.’ ” See Commonwealth v. Valliere, 366 Mass. 479, 496 (1974) (in complex trial with seventy-eight witnesses and over 250 exhibits, judge could permissibly determine that deliberations had not been “due and thorough” after thirteen hours). See also Commonwealth v. Semedo, 456 Mass. 1, 20-21 (2010) (within judge’s discretion to determine that jury that had deliberated “at most nine hours and perhaps less” had not reached point of due and thorough deliberations).

The third report of deadlock came at 9:40 A.M. on Monday, June 16, before deliberations had resumed. The judge elected to treat this communication as a reiteration of the note received the previous Friday at the end of the day. She instructed the jurors that she was “mindful” of their note and that they were to continue their deliberations. There was no objection by defense counsel. The judge’s course of action was within her discretion. No further deliberations had occurred since the time she had determined that the deliberations were not “due and thorough.”

The fourth report of deadlock came at 4 P.M. on the same day and indicated that the jury were deadlocked “11:1.” [FN9] Because of the hour, the judge denied the defendant’s request to give a Tuey-Rodriquez charge and dismissed the jury for the day. The *831next morning, before deliberations had begun, the voir dire of juror no. 15 was conducted and that juror was discharged for cause. An alternate was selected and the jury were instructed once more to begin deliberations anew. The judge proceeded properly. There was no reason to give a Tuey-Rodriquez charge; a new juror had joined the jury and deliberations began anew.

6. Discharge of deliberating juror. The defendant alleges that the judge discharged the only “hold-out” juror during jury deliberations in violation of his right to a fair trial under the Sixth Amendment to the United States Constitution and the provisions of G. L. c. 234, § 26B, and G. L. c. 234A, § 39. The judge discharged the juror after a voir dire and after reciting her findings of fact justifying the discharge. The defendant does not contend that the judge’s findings are erroneous. Rather, he claims that it was error to remove the “one hold-out” juror while the jurors were deliberating, particularly after the jury had communicated deadlock of eleven to one. He alleges also that the timing of the Commonwealth’s inquiry into the juror’s background was improper. Essentially, the defendant is arguing that, even if information had come to the judge’s attention that justified removal of the juror, the judge lost her authority to remove the juror either because the jury was already deliberating or because there was indication that this juror was the sole hold-out.

General Laws c. 234, § 26B, provides, in relevant part: “If, at any time after the final submission of the case by the court to the jury and before the jury has agreed on a verdict, a juror dies, or becomes ill, or is unable to perform his duty for any other good cause shown to the court, the court may order him to be discharged . . . .” General Laws c. 234A, § 39, refines the authority to discharge by providing in relevant part: “The court shall have authority to excuse and discharge a juror participating in jury deliberations after a hearing only upon a finding of an emergency or other compelling reason.” Pursuant to these statutes, numerous cases have upheld a judge’s determination to discharge a deliberating juror, including specifically for failure to disclose a criminal record. See Commonwealth v. Cousin, 449 Mass. 809, 821-822 (2007), and cases cited.

Context regarding the situation that resulted in the removal of the juror is helpful in understanding the judge’s action, the *832defendant’s contentions, and our resolution of the matter. Our summary recitation is derived from the record.

The standard juror questionnaire was completed by all potential jurors. It contained questions concerning the juror’s “experience with the law,” including whether the juror or anyone in the juror’s household or family had ever been arrested, charged with a crime, or served with a court order; been a witness in a civil or criminal case; been a crime victim; or been seated on a jury. The questionnaire form was signed by the juror below a statement that indicated that the information supplied on the form was true and complete “to the best of my knowledge.” The statement above the signature line explained also that a wilful misrepresentation or omission of a material fact on the form was a crime and set forth the penalty for the offense.

In addition, during empanelment, the trial judge devoted two and one-half pages of transcript to explaining the section concerning the juror’s “experience with the law.” He emphasized that some people do not answer the questions accurately, perhaps because they are embarrassed about a crime in which they were involved or may have forgotten a minor offense that occurred a long time ago. He gave examples of such situations. He stated that every juror’s record was checked on the computer. When he finished, the judge asked jurors to raise their hands if they had not “fully, accurately and completely answered the questions contained in the section . . . entitled, ‘Your experience with the law,’ ” so that they could have an opportunity to “add to the detail as . . . necessary.” During the course of empanelment, nineteen jurors raised their hands in response to the judge’s exhortation. The Commonwealth checked the criminal offender record information (CORI) of all jurors before empanelment was completed and timely shared this information with defense counsel. See Commonwealth v. Cousin, supra at 819. [FN10]

As indicated in part 5, supra, during jury deliberations, on Monday, June 16, 2008, the prosecutor brought to the judge’s *833attention the fact that, after the close of court on the previous Friday, he had learned that a juror had made material misrepresentations on her juror questionnaire. The new information concerned a criminal record of the juror’s husband. The judge declined to make inquiry of the juror concerning the criminal record of someone other than that juror. The Commonwealth sought an order from a single justice of this court, see G. L. c. 211, § 3, requiring the judge to conduct a voir dire of the juror or discharge the juror for good cause. On the following day, June 17, a single justice denied the Commonwealth’s petition, but stated that the holding in the case of Commonwealth v. Cousin, supra, needed no clarification and that “[t]he judge may conduct a hearing to determine the timing of the prosecutor’s inquiry into the accuracy of the juror’s questionnaire, and the judge has discretion to remove the juror.”

Accordingly, on that day, June 17, the judge questioned the prosecutor under oath regarding the circumstances in which he had learned of the misstatements. The prosecutor explained that on Friday, June 13, after the court day concluded, he learned that a victim witness advocate in the district attorney’s office (not assigned to this case) had seen the jurors in the instant case and had recognized juror no. 15 as a woman she had assisted the previous year in the Dorchester Division of the Boston Municipal Court Department in a domestic violence case against her husband. Because that information had not been disclosed on the questionnaire, the prosecutor directed a detective of the Boston police department to confirm the information by reviewing Boston police department records. Once the existence of the domestic violence action against the juror’s husband was confirmed, the prosecutor authorized a check of the CORI of the juror’s husband. The prosecutor obtained information regarding the husband’s criminal record after the jurors had resumed deliberations Monday morning. [FN11]

The judge conducted a voir dire of the juror and made findings as follows. The juror’s first language is English; she has an *834associate’s degree in education in Ghana and a second associate’s degree, a nursing degree, from a two-year college in the United States. Therefore, there was nothing to suggest that the juror did not understand the questionnaire. The juror questionnaire is precise and clear in its inquiries (in contrast to the questionnaire in use at the time of Commonwealth v. Cousin, supra); in addition, the questioning by the judge during empanelment “put an additional burden” on the prospective jurors to determine whether any of them had not answered the questionnaire accurately. Nevertheless, the judge found, juror no. 15 “failed to inform us” that she had “sought a court order”; had been a victim of a crime; had been a witness in “the sense that she had sought numerous restraining orders”; and had filed numerous lawsuits herself. [FN12] She also failed to state that her husband had been arrested, served with a court order, and charged with and convicted of a crime, and that she had been a witness in her husband’s criminal case. Indeed, the judge found that the only question juror no. 15 answered affirmatively in the section was that she had served as a juror.

The judge concluded that the juror’s explanation for her failure to disclose was not credible and that, given her education and training, she had intentionally misled the court and the parties. This was not a case of one inaccuracy, the judge found; rather, the inaccuracies occurred in virtually all questions regarding law enforcement, but for the one about prior jury service. The judge found also that had the information about the juror been known during empanelment, the Commonwealth would have exercised a peremptory challenge to remove her. [FN13] The judge concluded that there was a compelling reason under G. L. c. 234A, § 39, to discharge the juror and good cause for her discharge under G. L. c. 234, § 26B.

As stated, the defendant does not maintain that the judge’s findings are erroneous. Rather, the defendant contends that the timing of the inquiry was improper because the jurors were *835deliberating and there had been indication of deadlock. In other words, the defendant argues that an otherwise proper discharge of a juror became improper because of the time of the trial and state of the deliberations. The proposition is logically untenable and conflicts with the applicable statutes in any event. The two statutes governing discharge of a juror specifically authorize discharge during deliberations. See G. L. c. 234A, § 39 (“If, . . . after the final submission of the case by the court to the jury and before the jury has agreed on a verdict, a juror . . . is unable to perform his duty for any other good cause shown to the court, the court may order him to be discharged . . .”); G. L. c. 234, § 26B (“The court shall have authority to excuse and discharge a juror participating in jury deliberations after a hearing only upon a finding of an emergency or other compelling reason”).

The defendant’s contention that the judge dismissed the “one hold-out juror” is speculation. The judge found expressly that the jury was never deadlocked. Moreover, the judge found, and defense counsel recognized, that there was “no information whatsoever” of the position of juror no. 15. The defendant speculates that the return of the guilty verdict by the newly constituted jury on the next day indicates that the removed juror was the sole person holding out for acquittal. There is nothing in the record to support this theory.

The defendant argues in addition that the Commonwealth should not have inquired into the criminal record of the juror’s husband. The judge found that the Commonwealth learned in a “benign” manner that the juror may have made material misrepresentations on her questionnaire and that the prosecutor’s conduct was not improper. These findings are supported by the record. The Commonwealth’s course of action was a reasonable way of confirming the accuracy of the victim witness advocate’s perception and memory, and it was not contrary to anything we said in Commonwealth v. Cousin, supra, a case decided prior to the trial in the instant case. After the trial in this case, however, further experience with juror issues led us to conclude that, after the jury are sworn, “any check of CORI records or other inquiry into juror misconduct, whether sought by the prosecution or the defendant, may be done only with the approval of the trial judge.” See Commonwealth v. Hampton, ante 152, *836171 (2010). Accordingly, should a situation such as the one in this case arise in the future (recognition of a juror as a participant in a prior legal proceeding), the prosecutor (or defense counsel) must inform the judge of the issue and obtain court approval to undertake further investigation of the juror or anyone involved with the subject matter.

7. Inquiry into deliberative process or declaration of mistrial. The defendant asserts that there were three times during deliberations at which remedial action was necessary. He claims that at these times the judge should have realized that the jurors were not following the court’s instructions and that there were “significant issues” with juror no. 15 (the juror who was eventually discharged) that should have caused the judge to inquire of the jurors or declare a mistrial. The defendant did not object at trial to the judge’s actions at any of the three points now challenged.

The defendant bases his arguments on certain notes sent by the jury during deliberations. While the defendant labels these notes as evidence of misconduct, we do not view them as such. The notes did not disclose juror misconduct in the sense in which we have used that term. See, for example, Commonwealth v. Cuffie, 414 Mass. 632, 637-638 (1993) (juror visiting crime scene on own); Commonwealth v. Fidler, 377 Mass. 192, 197-201 (1979) (extraneous influences on jury). Rather, the notes reflect uncertainty among the jury regarding how to proceed with a hold-out juror.

We consider the judge’s actions in the various situations as well within her discretion. See Commonwealth v. Bryant, 447 Mass. 494, 503 (2006). The defendant has the heavy burden of showing that “no conscientious judge, acting intelligently, could honestly have taken the view expressed by [her].” Commonwealth v. Cruz, 456 Mass. 741, 756 (2010), quoting Commonwealth v. Druce, 453 Mass. 686, 701 (2009). See Commonwealth v. Bys, 370 Mass. 350, 361 (1976). Reversal for abuse of discretion in these circumstances is rare.

We consider each of the occasions of which the defendant complains. First, the defendant cites the note from the foreperson to the judge on June 16 at 9:30 A. M., sent before deliberations *837resumed that morning. This note referred to the existence of a deadlock and stated as follows:

“The addition of [two] new jurors has not changed the position of the jury. At this point, all but one juror is in agreement and there is no hope of that one juror changing their mind. She began to feel verbally abused on Friday and is very upset.”

The defendant maintains that this message indicated either that the jury had talked outside of deliberations [FN14] and decided to send the note to the judge, or that the foreperson had taken it on herself to send the note to the judge before deliberations began and without consulting the other jurors. Either action, claims the defendant, violated the judge’s instructions: the jury should not have been discussing the case when they were not deliberating and the foreperson alone may not decide what to communicate to the court on behalf of the jury. In addition, the defendant states that the disclosure of the vote was in violation of the judge’s instruction not to inform the court how the jurors “might stand at any particular time.”

We are not persuaded that the inferences the defendant asks us to draw are necessary or even reasonable. The logical inference from the communication is that the two jurors discharged were not the individuals preventing a verdict. Thus, their discharge and replacement was not moving the jury closer to resolution because the hold-out juror remained. The message was superfluous because the jury of which the two excused jurors had been a part no longer existed. The jury were instructed to begin deliberations anew and we assume that they did so. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). [FN15] The disclosure that the jury had been divided eleven to one, and that the one hold-out remained on the jury, had no harmful impact.

The defendant argues also that the judge should have inquired *838because the note quoted above indicated that it was juror no. 15 who felt “verbally abused” and was upset. Notwithstanding the defendant’s claim, the foreperson’s note did not identify the juror and did not provide a basis for inquiry. Tensions among jurors are expected and the note did not indicate any impropriety within the jury. “Tensions between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations.” Commonwealth v. Mahoney, 406 Mass. 843, 855 (1990). Our law confines strictly the judge’s authority to inquire into the deliberations in the jury room. See Commonwealth v. Torres, 453 Mass. 722, 732 (2009) (judge is to scrupulously avoid “invading the province of the jury”). See also Commonwealth v. Francis, 432 Mass. 353, 370-371 (2000); Commonwealth v. Fidler, 377 Mass. 192, 197-201 (1979). Moreover, as a result of the second note about a juror’s medical condition, the judge did inquire of juror no. 15 about her health a few hours later. The juror did not indicate that she felt verbally abused or that she was upset.

Third, the defendant asserts that the foreperson was untruthful in the note sent to the judge on June 16, 2008, when she wrote:

“One juror has expressed a concern that continued heated debate will cause a [flare up] of her medical condition. This type of heated debate would be required to make progress in the deliberative process. We are still at a deadlock.”

The defendant appears to be arguing that eleven jurors conspired to convince the judge incorrectly that the hold-out juror was incapable of continuing to deliberate. His specific assertions are that this note “misled” the court into believing falsely that the juror had a medical condition that might be exacerbated by heated debate and that the note was sent improperly without the knowledge of the juror affected. This, the defendant contends, was contrary to the trial judge’s instruction that any communication should be the result of a question from the entire jury. The judge responded to the note by inquiring of the juror. The juror said that she had an autoimmune disorder, “discoid and systemic lupus,” but could continue to deliberate. The judge acted within *839her discretion in determining whether the juror was at risk. She concluded permissibly that the juror’s medical condition did not present any difficulty and that the juror could continue to deliberate. In addition, the note was not improper. By acting on the matter, the judge found implicitly and permissibly that the note reflected the view of the jury as a whole. The defendant’s claim that the note “purposely misled the [c]ourt” so as to effect the juror’s removal is speculative and without record support.

The defendant cites Commonwealth v. Torres, supra, for support. In that case, a note suggested that a juror was refusing to deliberate; the judge conducted a voir dire of the juror and determined otherwise. We concluded that the judge acted permissibly. Here, the judge handled the situation as it was handled in the Torres case. The note indicated that juror no. 15 was ill and that her condition might worsen. The judge conducted a voir dire and determined that that was not the situation and returned the juror to deliberate. The Torres decision in fact supports the action by the judge in the present case. Commonwealth v. Cuffie, 414 Mass. 632, 636 (1993), also relied on by the defendant, is inapposite (judge refused to conduct voir dire of juror who had visited crime scene on his own). Here, the judge appropriately questioned the juror, and the judge’s ensuing action was an not abuse of discretion.

8. Improper communications. The defendant maintains that there were improper communications between juror no. 15 and a court officer, wherein “[u]pon information and belief, juror [no. 15], . . . complained to a court officer about her treatment by the other jurors and was repeatedly told by that court officer to continue deliberations and work out the differences she had with the other jurors.” The defendant offers no facts to support this speculation. Assuming, nevertheless, that the defendant’s scenario is correct, the communication or communications simply reflect disagreement within the jury. The judge committed no error; the remark or remarks were not brought to her attention. [FN16]

9. Review pursuant to G. L. c. 278, § 33E. a. Empanelment *840procedure. We have reviewed the entire record and have considered all the issues on appeal. Though not raised by the defendant, we have reviewed the trial judge’s empanelment procedure whereby he excused without further inquiry members of the jury venire who responded affirmatively to certain questions that the judge considered almost always “produce[] a disqualification.” These questions were ones such as whether the jurors were biased or prejudiced, whether they would give more credence to police officers as witnesses, whether they had a hearing or language difficulty, or whether the jurors could not apply the burden of proof or presumption of innocence. The judge presented his suggested procedure to both the Commonwealth and defense counsel and both sides (defense counsel after consultation with the defendant) agreed with its use.

In Commonwealth v. Foley, 402 Mass. 703, 704-705 (1988), we considered a similar process in which the judge “set aside” (but did not dismiss) any venire members who raised a hand in response to any of the initial questions, including ones such as whether anyone knew or was related to the lawyers in the case or the potential witnesses, had read or heard anything about the case, or had expressed or formed any opinions about the case. These venire members were “set aside” to be used if a jury could not be selected from the remaining venire. The defendant objected to the procedure, but the objection was overruled. We discussed the importance of randomness in the jury selection process, see Commonwealth v. Bastarache, 382 Mass. 86, 103 (1980), and concluded that, although there was no statutory violation in the procedure the judge followed, the procedure was undesirable. “We think it better that a potential juror not be placed in a separate category to be considered further . . . only if a sufficient number of other persons cannot be found in the available venire.” Commonwealth v. Foley, supra at 705-706. We advised: “[T]he question of disqualification for cause of a juror who answers one or more preliminary questions in the affirmative should be resolved in such a way that, if that person is found not to be disqualified, he or she should have the same prospect of sitting on the jury as do those persons who answer no preliminary question in the affirmative.” Id. at 706.

The judge here acknowledged Commonwealth v. Foley, supra, *841and stated that his practice had been to follow its advice, but that he wanted, for purposes of efficiency, to “revisit” it. We agree that there are differences between the cases. In the present case, the judge did not excuse jurors who responded affirmatively to the more routine questions; he “set[] aside” (or returned to the jury pool) only those whose answers he believed would result inevitably in their eventual exclusion. In addition, the defendant specifically agreed to the procedure.

We reiterate that a procedure that removes from the venire a potential juror whose unsuitability to serve has not been established is not advisable. However, the procedure used, even if error, did not result in a substantial likelihood of a miscarriage of justice. The defendant agreed to the procedure; no prejudice has been alleged or is apparent; and we cannot speculate whether any of the dismissed jurors would have been seated. However, to put to rest any residual uncertainty, pursuant to our supervisory authority under G. L. c. 211, § 3, we state that, in all criminal trials in which empanelment commences after the issuance of the rescript in this case, such a procedure is not to be used. We are not prepared to sacrifice the interest served by a random selection process to obtain an uncertain benefit in efficiency.

b. Admission of DNA evidence. In Commonwealth v. Mattei, 455 Mass. 840, 851- 855 (2010) (Mattei), we held that standard (nuclear) deoxyribonucleic acid (DNA) evidence that a certain person could not be excluded as a potential contributor of the DNA at issue should not be admitted without accompanying statistical evidence of the likelihood that the test could not exclude other individuals in a given population. Here, a forensic examiner testified that Turner could not be excluded as a potential source of the mitochondrial DNA found in a hair taken from the steering wheel of Vieira’s car. [FN17] She stated also that the profile she obtained from the hair was the “exact same profile” *842as that obtained from Turner’s oral swab. The expert did not offer any statistical testimony regarding the likelihood of a mitochondrial DNA match; she did state, however, that because it is shared by all maternal relatives, mitochondrial DNA can never be used to identify uniquely any individual. It is unnecessary on this record to decide if our holding in Mattei, supra at 855, applies to mitochondrial DNA testing that does not provide the same statistical calculations available from standard (nuclear) DNA testing. See Commonwealth v. Linton, 456 Mass. 534, 559-560 (2010). Here, there was no objection to the admission of the evidence, and we conclude that, if its admission were error, it did not result in a substantial likelihood of a miscarriage of justice.

We decided in Mattei, supra at 855, that the “nonexclusion” evidence without statistical explanation of its meaning was prejudicial error and necessitated reversal of the defendant’s convictions. [FN18] The DNA evidence in that case was “crucial” to the Commonwealth’s case. It was the only evidence that placed the defendant in the victim’s apartment where the assault had occurred; in addition, the prosecutor emphasized the importance of the nonexclusion result in the closing argument. See Mattei, supra at 855-857. By contrast, in the present case, the nonexclusion evidence was of marginal significance. Apart from the DNA evidence regarding the hair, there was evidence that Turner and Vieira were friends and that Vieira often gave his friends rides in his car; the fact that a hair consistent with Turner’s hair was in that car was thus of limited value to the Commonwealth. The minimal significance of the evidence is underscored by the fact that the Commonwealth did not mention it in closing argument.

The present case is more analogous to the case of Commonwealth*843v. Linton, supra. In that case, a DNA analyst testified that the defendant could not be excluded as a potential source of the DNA recovered from the fingernail scrapings taken from the victim. Because the defendant was the victim’s husband, it was of “limited significance” that small amounts of his DNA were found under her fingernails. Accordingly, we concluded that the DNA evidence, “considered in the context of the evidence as a whole,” if error, did not create a substantial likelihood of a miscarriage of justice. Id. at 560. Similarly, we are satisfied here that, in the context of the entire case, admission of the nonexclusion evidence without qualifying statistical evidence, if error, did not result in a substantial likelihood of a miscarriage of justice. See id.

10. Conclusion. We discern no reason to order a new trial or reduce the convictions of murder in the first degree to a lesser degree of guilt.

Judgments affirmed.

FN1 During deliberations, the original trial judge became ill and was hospitalized for surgery. He was replaced by another judge. See Mass. R. Crim. P. 34 (a), as amended, 442 Mass. 1501 (2004).

FN2 The judge determined also that there was no impropriety in transporting the defendant to the homicide unit; that this had not caused any “excessive” delay; and that the defendant’s right to a prompt arraignment was not violated. See Commonwealth v. Rosario, 422 Mass. 48, 56 (1996).

FN3 The defendant does not challenge the substance of the charge on joint venture.

FN4 The judge did not instruct on joint venture as to the Glock weapon.

FN5 Since the trial of this case, we have articulated the concept as “aiding and abetting” rather than as “joint venture.” See Commonwealth v. Zanetti, 454 Mass. 449, 466-468 (2009). The new language is to be used for trials that commenced after the issuance of the rescript in that case.

FN6 “Regarding the charts with telephone numbers, the information contained therein, the reason that counsel and I were having an extended discussion is that technically and strictly speaking these large blow-up charts that Mr. Wall is offering into evidence are hearsay. That is, they’re compilations admittedly [made] by Detective Torres outside of court, based on a number of things. Based on the, according to his testimony, which is up to you to credit or not depending on how you view it, based on the Verizon records as well as verbal testimony from other witnesses and perhaps other sources such as telephone books and Internet sources. To the extent that there is a difference between Detective Torres’s compilation and the underlying records, which may come out as the testimony goes further, you should keep in mind that he simply claims to be making a compilation. He’s not the original maker of business records. And to the extent that that is of importance to evaluation of any particular point in this case, you should always keep that in mind, that these are simply compilations and I am essentially admitting them because it probably would be of assistance to the jury to have some form of compilation made of the voluminous business records submitted by Verizon as well as testimony and other references.”

FN7 Although the judge informed the jurors at the outset of empanelment that the trial was expected to last one month, the record does not indicate that the juror with an airline ticket for Jordan informed the judge of her later unavailability. She stated in her subsequent voir dire before the replacement judge that she had informed a court officer of her travel plans when she was selected as a juror. There is no record indication whether the court officer passed this information to the judge.

FN8 Because the judge had so recently assumed charge of the trial, see note 1, supra, she was presiding over a trial of her own while managing the jury in the present case.

FN9 The defendant maintains that the fourth report of deadlock was the communication sent at 11:30 A.M. on June 16. As stated, we do not treat that note as one indicating deadlock. Its purpose was to notify the court of the condition of juror no. 15. Even if we were to consider the note as one announcing deadlock, the judge implicitly concluded that, at that time, only two hours after deliberations had resumed (and after eight hours total of deliberations), deliberations had still not been due and thorough. Such a decision is within her discretion. See, e.g., Commonwealth v. Semedo, 456 Mass. 1, 20-21 (2010); Commonwealth v. Valliere, 366 Mass. 479, 496 (1974).

FN10 In this case, the Commonwealth obtained, but did not “look at,” the criminal offender record information for all members of the venire before the start of empanelment. Only the records of those jurors deemed indifferent were reviewed by the Commonwealth and provided to defense counsel. See, in this regard, Commonwealth v. Hampton, ante 152, 169-171 (2010).

FN11 The information the prosecutor obtained was that the juror’s husband had a recent Federal conviction. The prosecutor informed the judge on the previous day of the existence of the Federal conviction. The prosecutor did not mention the fact of the conviction in his testimony.

FN12 The juror testified that she had sued several of her tenants for failure to pay rent.

FN13 Although this finding is warranted, it is superfluous. The issue is not the Commonwealth’s response had the juror been truthful; the issue is the capacity of this juror to participate in the process despite her material falsifications on the questionnaire. The court has an independent interest in the matter.

FN14 The jury had been instructed on the previous court day not to discuss the case again until they returned to the jury room to deliberate.

FN15 In addition, when defense counsel voiced a concern that the jury had communicated improperly, the judge stated that she (the judge) had had the “note in hand before [she] asked the jurors whether they discussed the case with anyone, and they responded negatively.” Thus, the defendant’s claim is not supported by the record.

FN16 The defendant filed a postverdict motion seeking permission to interview “dismissed trial juror.” The motion was denied. The defendant makes no claim regarding the denial of the motion. In any event, the motion does not present any argument other than those raised in the defendant’s brief.

FN17 The expert testified that nuclear deoxyribonucleic acid (DNA), found in the cell nucleus, is a combination of the DNA received from one’s mother and father. She stated that nuclear DNA has sixteen “locations” and thirty-two “characteristics,” and is “unique” to an individual. Mitochondrial DNA, in contrast, is found in the outer portions of a cell and is the DNA inherited from one’s mother. The expert testified that it contains only one “location.” Because it is shared by everyone with the same maternal relatives (e.g., maternal grandmother, mother, siblings), mitochondrial DNA is never unique to an individual. The expert testified further that mitochondrial DNA testing may be used in situations such as the testing of the hair in this case, where the hair follicle necessary for nuclear DNA testing is not available.

FN18 In Commonwealth v. Mattei, 455 Mass. 840, 848 (2010), the defendant objected to the admission of the challenged testimony. We therefore considered whether the error was prejudicial, a standard more favorable to the defendant than the one applied here for review of unpreserved error. See Commonwealth v. Flebotte, 417 Mass. 348, 351, 353 (1994).